Smith v. State

Moore, J., delivered the opinion of the Court. On November 29, 1972, appellant, Robert Ashley Smith, nineteen, was a recent high school graduate, employed at $110 per week in a frozen food plant in Northeast Washington and living with his parents in Bowie, Prince George’s County, Maryland. Early that morning, George and Lucille Brown, a middle-aged couple who resided across the street from the Smiths, died in the holocaust of their home which was discovered on fire shortly after one a.m. Indicted thereafter for two counts of first degree murder and one count of arson, appellant was convicted of all three counts in the Circuit Court for Prince George’s County, Judge Samuel W. H. Meloy presiding without a jury, and sentenced to two life terms and one term of twenty years, all to run consecutively. ⁵⁸⁰ Appellant contends that the lower court erred in (a) receiving in evidence, after hearings on his motion to suppress, inculpatory statements given to a three-member police team during the early morning hours of November 30, 1972, and (b) in failing to limit the admissibility of a detective’s handwritten notes previously offered and received as a defense exhibit, so as to exclude the result of a polygraph test requested by appellant while in custody.

A third ground of alleged error, seriously pressed, is that the State failed to establish, as the cause of the conflagration, the pouring of a flammable liquid (gasoline) along the front of the house and thus failed to establish the corpus delicti and criminal agency on the part of the appellant, in the face of expert testimony adduced by appellant that the fire had two independent natural origins, (1) defective electrical wiring in the area near the front door of the house and (2) a separate burning in the living room of the house, near the sofa, allegedly caused by a cigarette. For the reasons set out below, we reject these assignments of error and conclude that the judgment and sentence of the lower court must be affirmed. I The inculpatory statements assailed as improperly received consist of appellant’s handwritten statement, questions asked him by the detective in charge, Mr. Crump, and appellant’s answers — all in Crump’s handwriting but signed by appellant — and oral statements made by appellant to each of the three detectives during the course of interrogation. As will appear, these statements are a curious melange of the hypothetical and assertorical, of direct incriminatory admission and oblique conjecture as to acts appellant “could have” or “might have” committed.

Taken as a whole, however, there can be no question, in our view, that they are inculpatory, “in the nature of [a confession],” Markley v. State, 173 Md. 309, 314 , 196 A. 95 (1938), and that their admissibility, therefore, was subject to the requirement of constitutional voluntariness. 1 ⁵⁸¹ The bases for the alleged error in admitting the statements are that the Miranda warnings were inadequate and ineffective, that appellant was denied his right to counsel during the custodial interrogation, and that the statements were not given freely and voluntarily. Mr. Smith’s handwritten statement read as follows: “All I can remember was that I went home about 1:00 a.m. and went too sleep. The next thing I remember was my alarm going off and it being 5:30 a.m. so I got up to go to work. “Now what I think might have happened was that I got up shortly after I went to bed and went outside. From there I could have gone across the street to the Brown’s home and entered the garage.

Where I found some gasoline, I then poured it on the house and set it aflame. Thinking that it was a pile of wood and that it was cold outside. After this I might have gone for a walk, to what place; I don’t know. I might have turned around after awild and I must have seen the flames much higher than I expected.

From that point on I was scared so the best thing for me was to head on home; and this is the way that I thought it was. (As in the original.) The questions and answers signed by him are as follows: “Q. How would the fire have started? A. Gasoline. Q. Where did the gasoline come from?

A. Possibly Mr. Brown’s garage. Q. What type of container is it in? A. Red gas can, most gas cans are red. Q. Where did you put the gas?

A. On the house, outside wall, front. ⁵⁸² Q. Where would you put the gas can after the fire started? A. The logical thing is just to get rid of it. Q. Why would you have started the fire? A. To scare them.

Q. Did you intend for the Browns to be killed? A. No. Q. Was the death of the Browns only an accident? A. Yes. Q. Does Matsie, Rex, or Marc have any direct knowledge of the fire or deaths?

A. No, not to my knowledge. Q. Have you told anyone, except for the police, about the fire? A. No. The real reason I started the fire was because I hated the clinging Rose Vine on the left side of the front porch. I had ran into it a couple of times during the last summer.

Q. What kind of gasoline? A. Shell regular. Q. Why Shell regular? A. Because I used to work for Shell Oil Co. and its the cheapest gas.

Q. What area of the house caught fire? A. The porch, front door. Q. How was the fire ignited? A. Match, after trail of gasoline was laid down.

Q. When you talked to your parents did you tell them this? A. No. Q. Have you been forced, threatened or promised anything to give this statement? A. No. Robt A Smith.” Appellant’s contentions with respect to alleged error in receiving these statements, as well as oral statements testified to by the detectives, were assayed twice: first, in a ⁵⁸³ pretrial suppression hearing before Judge Ernest A. Loveless, Jr. and thereafter in a hearing de novo during the trial granted by Judge Meloy under Md. Rule 729 g 2. 2 The pertinent evidence upon the motions to suppress could be found from the record to be substantially as follows: After the fire at the Browns’ residence was brought under control and the bodies removed, County homicide detectives conducted a neighborhood investigation in the course of wdiich they called at appellant’s home at about 5 a.m. on November 29, 1972. He was in the process of dressing for work and granted the detectives full permission to look around.

Mr. Donald Beach, through whom he had obtained his employment about two and one-half woeks before and with wrhom he had been commuting to work, picked him up at about 6:15 a.m. He worked from 6:45 a.m. to about 2:30 p.m. At about 9:30 p.m. five detectives appeared at his door. Appellant admitted them and permitted them again to inspect the premises, including the outside garage.

His parents were away on a trip to Williamsburg, Virginia. The detectives asked him to come to the police station to make out a statement and he agreed, “just to be a good citizen; to cooperate with the police.” At the station, he was left alone in a small interrogation room from 10 p.m. until approximately 10:30 p.m. wdien Detective Crump read him the Miranda warnings from a small card. In addition, appellant signified his willingness to make a statement on a printed form containing the Miranda warnings and signed his name to a “Waiver of Rights” appended thereto. ⁵⁸⁴ Appellant was interrogated in turn by Detectives Crump, Nelson and Hatfield. He was left alone between interviews for intervals of time up to 35 minutes, during which he relaxed and smoked or slept.

He was permitted to use the telephone once upon his request and to use the men’s room as needed. He was also given “cokes” and crackers. Detective Crump was the first to interrogate him and appellant, in his testimony, did not complain of Crump’s attitude or questioning. Detective Nelson, appellant testified, however, “came in kind of loud” and acted “like he was unafraid of anybody.” Appellant did not like his attitude and “just refused to really cooperate with him.” The demeanor and approach of Detective Hatfield, he testified, was different: “Very soft, yet sure-footed.” Appellant was comfortable with him at first but became disturbed later because Hatfield had “one knee . . . between both my knees and he was leaning forward talking to me.

Then he would move up a little bit each time.” Appellant got up and walked around the room but, he said, the Detective moved up on him again when he resumed his seat. Eventually, appellant was given paper and pencil by Detective Crump and began to write out a statement. Prior to this, he had told Crump and the other officers that he did not burn the Browns’ house but knew how it “could have” been done, with gasoline; also, that he “might have” done it. Appellant testified that, prior to writing the statement, he asked Detective Crump if he could have a lawyer and that the detective responded: “Yes, but we don’t have one standing out by the front door.” The detectives, in their testimony, stated that appellant did not request an attorney at any time during the interrogation.

Detective Nelson testified that appellant never requested permission to go home: “No, sir; quite the contrary. Mr. Smith wanted to stay. He kept saying he didn’t know whether he did it or not and he wanted to prove to himself if he — he wanted to find out for himself if he lit the fire. He requested a polygraph examination.” Appellant began preparing his statement, according to the ⁵⁸⁵ detectives, at “0300 hours” on November 30 and completed it an hour to an hour and one-half later.

Appellant, on the other hand, stated that it seemed “more like 8:00 or 9:00 o’clock in the morning,” 2a and appellant’s counsel argued to the court that Detective Crump’s notes, received in evidence, originally revealed “0900” as the time appellant began his written statement and that the numeral “9” had been changed to “3.” The specific points raised by appellant in the context of the circumstances above outlined are (D that the Miranda warnings were administered only once during a period of extended interrogation by three officers; (2) that his request for an attorney was ignored; (3) that his statement was obtained by the use of improper psychological devices and (4) that his will was overborne because of the length and nature of the interrogation and because of lack of sleep for a period exceeding 24 hours. In reviewing the admissibility of a confession or other inculpatory statement, this Court has consistently recognized its obligation to make an independent review of the record. Thus, in Dennis v. Warden, 6 Md. App. 295 , 251 A. 2d 909 (1969), Chief Judge Orth stated, at 315: “While the general rule is that the determination of admissibility of a confession is left largely to the trial court, and will not be disturbed unless there is a manifest abuse of discretion, Cooper v. State, 1 Md. App. 190 , it is our duty on review to examine the entire record and make an independent determination of the ultimate issue of voluntariness. Davis v. North Carolina, supra, at 741-742.

As is almost invariably so in cases involving confessions obtained through unobserved police interrogation, there is a conflict here in the testimony as to the events surrounding the interrogations. But we are not a finder of facts; the ⁵⁸⁶ weight to be given evidence and the credibility of witnesses are matters for the lower court.” And in Walker v. State, 12 Md. App. 684 , 280 A. 2d 260 (1971), Judge Moylan expounded the concept of independent appellate review in the following language, at 695: “What we mean, therefore, when we say that we have the obligation to make an independent, reflective constitutional judgment on the facts whenever a claim of a constitutionally-protected right is involved is that, although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time that an interrogation began, whether a meal was or was not served, whether a telephone call was requested, etc.) we must make our own independent judgment as to what to make of those facts; we must, in making that independent judgment, resolve for ourselves the ultimate, second-level fact — the existence or non-existence of voluntariness.” With respect to the first contention, we find no support on the facts presented nor under the decided cases for the proposition that the Miranda warnings should have been renewed. The trial court could properly accept the detectives’ version of the facts relating to the elapsed time between the administration of the warnings at 10:30 p.m. and the commencement of the preparation of the statement at 3:00 a.m. — a total of approximately 4lA hours. During this time, appellant was not removed from the original place of interrogation nor were the identities of the interrogators changed.

The situation is quite unlike that presented in Franklin v. State, 6 Md. App. 572 , 252 A. 2d 487 (1969), upon which appellant relies, where the Miranda warnings were first administered on September 4 and the appellant was subjected to further custodial interrogation on the two following days without being afforded again the requisite warnings and without an effective waiver of his rights having been secured. And in Brown v. State, 6 Md. App. 564 , 252 A. 2d 272 (1969), upon which reliance is also placed, the ⁵⁸⁷ appellant was warned of his Miranda rights on a Sunday night at Deer Park in Garrett County where he was interrogated, and the following day he was driven to a State Police barracks 50 miles distant for further interrogation by another police officer, a lie detector expert, who did not give the warnings. This Court, in an opinion by Judge Thompson, reversed the judgment of conviction, but the following language concerning the necessity vel :non for renewal of Miranda warnings in custodial interrogations, is strikingly apposite: “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. See particularly State v. Davis, 157 N.W.2d 907 (Iowa 1968); People v. Long, 69 Cal.

Rptr. 698 (1968); Sossamon v. State, 245 Ark. 302 , 432 S.W.2d 469 (1968); Miller v. United States, 396 F. 2d 492 (8th Cir. 1968). The thread running through these cases, however, shows that both interrogations were conducted by the same officer, in the same place, or were close together in point of time, or the statement at the subsequent interrogation was substantially the same as at the earlier interrogation.” p. 569. We hold that the circumstances in the instant case do not support the contention that the Miranda warnings should have been re-administered. Appellant next contends that during the course of his interrogation he requested an attorney and that Detective Crump denied him that constitutional right by responding: . . we do not have one standing outside the door. . . .” In his oral opinion denying the pretrial motion to suppress Judge Loveless expressed concern with this contention and made the following finding with respect to it: “I do have some concern, however, on the question of his inquiry concerning, ‘Is there an attorney available,’ or, ‘Where is one,’ and the ⁵⁸⁸ statement was made that, ‘Well, we don’t have one outside the door.’ Again I have to look at the totality of the entire situation with the warnings that had been given, and with the statements that were signed.

I can only conclude from the individual’s person, his education and his apparent understanding, that he understood that he could stop, that he didn’t have to continue, and that this was not in effect a request that T do want an attorney.’ ” We note that Detective Crump, in his testimony before Judge Loveless, denied on direct examination that appellant had requested an attorney and, on cross-examination, testified that the statement was not made that: “Well, we don’t have them (attorneys) standing around outside the door.” If the implication of the above excerpt from the opinion of Judge Loveless is that he accepted appellant’s version of what was stated by himself and Detective Crump, respectively, we would find ourselves in sharp disagreement with the conclusion that appellant was not denied his right to counsel. The Supreme Court in Miranda provides no escape from its mandate that interrogation shall cease when the accused “indicates in any manner and at any stage of the process that he wishes to consult with an attorney,” (emphasis added); and, as Chief Justice Warren explained: “The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” 384 U. S. 444 -45. See also, Nasiriddin v. State, 16 Md. App. 479, 498 , 298 A. 2d 490 (1973). Here, however, there was a hearing de novo during the trial of the case.

Detective Crump again denied that appellant at any time requested an attorney and his notes, received as a defense exhibit, also contained an entry: “Did not request counsel.” Detective Hatfield, when interrogated on the point, also testified that no request for an attorney was made of him by appellant. The latter’s testimony in the de ⁵⁸⁹ novo hearing before the trial judge on the motion to suppress was as follows: “Q Was there any talk between you and him about a lawyer? A No. Q In the second interview with Detective Crump, was there any talk about a lawyer? A I believe there was.

Q What was that? A I asked him something to the effect, ‘Could I have a lawyer come in and talk to me about this before I answer any more questions?’ He said, ‘Yes, but we don’t have one standing out by the front door.’ ” The trial judge made no formal findings of fact nor did he issue an opinion at the conclusion of the hearing de novo. It was not incumbent upon him to do so, then or later. Sims v. Georgia, 385 U. S. 538 (1967).

As the Supreme Court also held in Sims, it is required that the trial court’s finding of voluntariness “appear from the record with unmistakable cíarity.” 385 U. S. at 544 . See Murphy v. State, 8 Md. App. 430 , 260 A. 2d 357 (1970). Here, Judge Meloy made an express finding of voluntariness at the end of the de novo hearing which fully conformed to that standard. Moreover, as previously indicated (footnote 2, supra), in stating his findings and conclusions from the bench at the close of the case he expounded the reasons for his determination of voluntariness in the de novo hearing, at some length.

He did not specifically advert to the question of whether or not there had been a request by an appellant for an attorney. Implicit, however, in his denial of the motion to suppress is a finding that the conflict in the testimony of the accused and the detectives was resolved in favor of the latters’ version. The trial judge’s consideration of such a motion necessarily involves the resolution of disputed facts and issues of credibility upon which the questions of voluntariness and protection of constitutional rights depend. Jackson v. Denno, 378 U. S. 368 (1964).

The weight to be given evidence and the ⁵⁹⁰ credibility of witnesses are matters for the lower court. Gibson v. State, 4 Md. App. 222 , 242 A. 2d 204 (1968),. Accordingly, we conclude that appellant’s claim of a denial of his constitutional right to counsel during the interrogation is without merit. We must also reject the contention that the trial court should have granted the motion to suppress because of “patent psychological ploys,” 3 as suggested by appellant.

In our independent review of the entire record, we find no error in the findings below that the so-called “Mutt and Jeff” routine had not been employed by the detectives nor that any improper physical coercion was exercised by Detective Nelson. Even if the approach and demeanor of each of the three interrogating officers had been found by the lower court to have been deliberately different and simulated, the ultimate test of any alleged impropriety in this type of interrogation is, of course, its effect upon the accused. Here, the claimed truculence of Detective Nelson did not place appellant in fear. According to appellant’s own testimony he told Nelson “where to go” and “refused to cooperate.” As for the alleged closeness of the detective to the accused in the interrogation room and the alleged technique of inserting his knee between those of appellant (claims denied by the detective), there is again no evidence to sustain counsel’s argument that “fear and emotional distress in the mind of the defendant” resulted.

The factual situations in Walker, supra, and Dennis, supra, upon which appellant relies, bear little resemblance to the facts here and these cases do not, in any event, reach the question of impropriety vel non in the use Of psychological techniques. Here, the appellant himself, in response to a question by the trial judge, stated that he could not “pinpoint” any improper influence upon him by his interrogators. A conflict exists in the testimony of appellant and that of the third detective, Mr. Hatfield, on the question of whether or not the detective had urged him to “cop to a lesser charge.” The detective denied any such statement but ⁵⁹¹ admitted advising appellant that if his version of the occurrence as an accident was acceptable to the State’s Attorney, the court “may take that into consideration.” He also denied having informed appellant that if he told the truth he would be permitted to go home and/or that he would not have to cope with Detective Nelson. Again, the resolution of this conflict in the testimony was for the lower court.

Maryland case law applicable in the area of prohibited inducement was succinctly stated by this Court in Hargis v. Warden, 3 Md. App. 76, 80 , 237 A. 2d 807 (1968), footnote 2: "Maryland has held that an inducement to the effect that a confession would ‘help’ a defendant is sufficient to make a subsequent statement involuntary under certain circumstances. Lubinski v. State, 180 Md. 1 . Maryland has also held that a statement by the authorities to the defendant that it would be ‘better’ for him to confess may make a subsequent statement inadmissible. Biscoe v. State, 67 Md. 6 ; Watts v. State, 99 Md. 30 ; Dobbs v. State, 148 Md. 34 at 60, 61 (concurring opinion); Edwards v. State, 194 Md. 387 ; but cf. Ralph v. State, 226 Md. 480 .

But cases have also said that a mere exhortation to tell the truth would not amount to a prohibited inducement. Deems v. State, 127 Md. 624 ; Kier v. State, 213 Md. 556 ; Merchant v. State, 217 Md. 61 ; Burke v. Warden, 239 Md. 701 .” Urging an accused, during the course of custodial interrogation, to “cop to a lesser charge” clearly would be prohibited, but it is apparent that the question of credibility was here resolved against the accused. Similarly, to inform the accused that he would be released if he told the truth would be improper if the circumstances disclosed that the accused was influenced thereby. Here, the appellant evinced no desire to leave.

Indeed, as the trial court pointed out, by his own testimony appellant felt free to leave at any time. The statement w'hich the detective admitted making, namely, that the court might take into consideration a version by the accused of the fire being accidental, does not ⁵⁹² bear the benchmark of prohibited inducement. The test, at all events, is whether the confession or other inculpatory statement was procured under the hope of favor or advantage if made, or fear of harm or disadvantage if withheld. Biscoe v. State, supra.

As the Court of Appeals pointed out in Biscoe , in determining the force of any influence used and its effect upon the person in custody, “much, very much . . . depends upon the age, the experience, the intelligence and character of the prisoner.” Here, the accused was youthful. He had, however, completed his secondary education and was responsibly employed. The court described him as “composed, articulate, erudite and sophisticated.” Upon our independent review of the record, we do not find that his inculpatory statements were the product of any improper influence by Detective Hatfield on the specific grounds advanced, nor on any other basis. Finally, appellant’s omnibus charge that his statements were not made freely and voluntarily must be measured by whether, under all the circumstances, they were “the product of a free and unconstrained will which had not been overborne or compelled.” Robinson v. State, 3 Md. 666 , 672, 240 A. 2d 638 (1968); Dennis, supra; Walker, supra. .

In this case, there was evidence which was sufficient to establish that the full panoply of Miranda warnings was administered, that appellant had not requested counsel prior to or during the interrogation, that he was not denied the use of the telephone, that he was afforded beverage and crackers, that although he had been without sleep since 5 a.m. on November 29 until approximately 4 a.m. on November 30 when his statement was completed, he nevertheless had dozed and slept for short periods during interruptions in the interrogations; that he was in normally good health, a 19 year old high school graduate of average intelligence, gainfully employed, that he wrote his own statement and signed the questions and answers written by Detectiv.e Crump, that he was not physically restrained or prevented from returning to his home and stated twice that he did not want to go home until he found out if he had done it or not, that he himself hypothesized not only how the ⁵⁹³ crime might have been committed but also how he himself might have perpetrated it before he wms given writing materials to compose a statement; and in response to a question by the trial court, testified that he could not “pinpoint” any improper influence upon him by his interrogators. In this factual context, our examination of the entire record leads us to the. conclusion that the statements were not the product of a will overborne. We find no coercion from any practice by the police which had the effect of controlling appellant’s will. The statements were voluntarily given. 4 II Appellant’s next contention is that the trial court committed prejudicial error in not excluding that portion of a defense exhibit which referred to the results of appellant’s polygraph test.

Our examination of the record discloses that the first reference to a polygraph test came on direct examination of Detective Nelson, on the second day of trial, as follows: “Q Who brought up the subject of the polygraph? MR. JOHNSTON: I will object to anything about the polygraph. It is not relevant or admissible.

THE COURT: I agree the finding would be inadmissible. But I will overrule the objection as to the question. THE WITNESS: Mr. Smith. BY Mr. O’Connell: Q Was he offered one?

After he brought the subject up? A Yes, sir. Q Was one actually given to him? A Yes, sir. ⁵⁹⁴ Q Approximately what time?

A It would be in the morning, approximately, I guess, around 6 o’clock, 6:00 a.m. Q That would have been after his statement was completed? A That is right.” The trial court’s observation concerning the inadmissibility in Maryland of the results of “lie detector” tests was, of course, correct. Rawlings v. State, 7 Md. App. 611 , 256 A. 2d 704 (1969).

Detective Nelson -was followed to the stand by Detective Hatfield. When the latter’s testimony was completed, the court announced that the de novo hearing, on the renewed motion to suppress, would proceed. Defense counsel thereupon called the appellant, followed by a psychiatrist and appellant’s father. At the conclusion of their testimony and before resting on the motion, defense counsel announced to the court that defendant was offering — and the State did not object — Detective Crump’s notes of his interrogation of appellant consisting of 2 pieces of yellow paper with handwriting on the front and reverse sides.

The exhibit, marked as defendant’s No. 5, was received in evidence. The court experienced difficulty in reading the detective’s handwriting and requested counsel to read it. Then, for the first time, counsel indicated that the purpose of the exhibit was to dispute Detective Crump’s testimony as to the time when appellant’s written statement was made. 5 In response to the court’s direction to read the exhibit, counsel requested permission to approach the bench and th following colloquy occurred: “MR. DIGMAN: Your Honor, the purpose of introducing this is for Crump’s time that he has on here.

There are things that he had written on the back of this thing. ⁵⁹⁵ THE COURT: You introduced the whole thing. The Court has got to consider it. MR. JOHNSTON: There is no other way I can do it.

It is very, the time element is extremely important. THE COURT: I understand that, Mr. Johnston, but I, as trier of the facts and interpreter of the evidence, I have to know exactly what it says. I ask you to read it into the record, sir. MR.

JOHNSTON: That is the problem. If I read it here, to me that is 900 hours.” Thereupon, co-counsel read the entire exhibit, without making any objection, including this: 6 “He followed up by asking for polygraph . . . which was run at 9:45 a.m. The test showed deceit.” It is clear that counsel originally offered the entire document and, after it was received, made no request on the record that any portion of the exhibit be withdrawn; nor was any formal objection made to the court’s instruction that it be read; nor was there any more specific explanation to the court of the contents of the notes belatedly deemed exceptionable than counsel’s statement at the bench: “There are things on that back that are the same as the statement itself.” We are persuaded by our review of the proceedings that the contention that the court committed prejudicial error cannot be sustained because (a) the exhibit was offered in evidence by defense counsel and received, without any prior disclosure to the court by counsel that it was being offered for a limited purpose; and (b) no objection nor motion for a mistrial or other appropriate relief was made below so as to preserve the question for appellate review. Rule 1085.

Furthermore, the trial judge earlier had explicitly stated that the polygraph test results would not be admissible, and there is nothing to indicate that he considered the results as ⁵⁹⁶ disclosed in the detective’s notes