Spell v. State

Orth, J., delivered the opinion of the Court. The question presented on this appeal is whether the confession of the appellant was properly admitted in evidence against him. The appellant, convicted at a court trial in the Criminal Court of Baltimore of three offenses of robbery with a deadly weapon and sentenced to a total of 15 years, 1 asks: “Was the atmosphere in which the interrogation took place, of such a character, as to justify the court in finding that a confession obtained under these circumstances was voluntary and that (he) knowingly and willingly waived his Miranda rights ?” About 9:00 P.M. on Friday, 1 December 1967 the appellant and a companion robbed a liquor store at 1800 Division Street. The appellant jumped over the counter and was rifling the cash register while his companion ¹²³ held a gun at the head of the store clerk.

When the man holding the gun turned his head to see what the appellant was doing, the clerk ducked behind the counter and using the appellant as a shield yelled, “Shoot him.” The robber with the gun shot and hit the appellant in the left shoulder. Both robbers escaped. The police were informed that a man answering the description of one of the robbers had applied to the Johns Hopkins Hospital for treatment. Officer Richard M. Catania went to the hospital and the appellant gave his name and said that he had been shot in the 700 block of Catherine Street in an argument over a girl.

There was no interrogation at that time. A check of police records disclosed that there was a warrant outstanding against the appellant for another crime and “we left a policeman there to guard him.” The following Sunday “when we came back to work, we received word from Johns Hopkins that Mr. Spell wanted to talk to our sergeant.” Lt. Judd, Sergeant Vogelsang and Catania went to the hospital, Catania testified that the appellant’s sister, Gladys Aye, was present. He gave the appellant the Miranda warnings and Lt.

Judd also gave them by reading from a “Miranda Card” — “we all carry these.” The appellant was told (1) he had a right to remain silent; (2) if he chose not to remain silent, anything he said could and would be used as evidence against him in court; (3) he had a right to consult a lawyer before any questioning and a right to have a lawyer with him during any questioning; (4) if he lacked the financial responsibility to obtain a lawyer, a lawyer would be appointed to represent him before any questioning and he may have the appointed lawyer present with him during any questioning. “He was asked repeatedly if he understood, and he said yes, he did * * * He understood. We left his sister right there, so she would understand.” No “coercion was applied” to the appellant, he was not “offered any rewards or immunity for saying anything,” he was not “threatened in any way.” On cross-examination Catania described the appellant’s physical condition at the time: ¹²⁴ “He was lying in the bed. He was — he didn’t— he seemed to be a little uncomfortable. He was bandaged up, and the nurse was called in two or three different times to try to ease his — to ease him a little bit.

He was a little uncomfortable, I believe.” The transcript continues as follows : “Q He was in pain ? A Pain. Q Could you tell if he had been under any sedation ? A I know he was under sedation.

Q You knew he was under sedation? A To ease the pain, I imagine. Q Do you know - how much sedation he was under ? A No, sir.

Q Did you check with the nurse to see how much dope he had in him— A No, sir. Q —or what kind of pills he had been given or anything like that ? A No, sir. Q Well, did you check with the doctor or anyone at all ?

A We asked the nurse, but she kept on — we kept on going to get this nurse, because he yelled that he was in pain, and she said that she gave him everything that he could have. He can’t have no more. Q He was doped up to the limit ? A I don’t know if that is the correct terminology.

I think the answer to it is that she gave him what the doctor prescribed to give him. Q She couldn’t give him any more? A She couldn’t without the doctor’s permission.” In answer to a question by the court whether the appel ¹²⁵ lant was conscious at all times while giving the statement or while he was talking to the police Catania said: “He was conscious and he was very alert. The only thing that I do say is that he was a little uncomfortable.

That is the only thing that I did say about that.” Asked, other than that, whether the appellant knew what was happening, and answered the questions, the witness said, “Yes, sir.” The appellant testified on the issue of the voluntariness of his statement. He said the police came to the hospital and saw him on 1 December and 3 December. He denied giving an oral statement to the police. He was in “great pain” and had been given a “shot” every four hours in his shoulder.

He was also given some pills. He was operated on shortly after going to the hospital; he had been given blood; he was very weak. He denied the police ever told him anything about his rights “prior to giving them a statement.” Catania, a lieutenant and a sergeant came and asked questions while he was in the “overnight ward.” His sister was there when the police came in. Catania told him to “tell him if I did do it, or if I did, tell him, and when they get me downtown it would be all just this one charge.” He denied that the officers read anything to him and asked if he understood it until he was released from the hospital.

On the Sunday the police came to see him he was still being given shots, was in pain and was weak. He had an “I.V.” needle in his neck. Asked if he knew what the police were saying, he said, “Well, I understood them — I understood them not too good, because I * * * was in pain, and at the time when I was talking, each time I would breathe or say something to them, I would get an ache in my chest, in the side.” The police called a nurse while they were there and she came in but did not then give him a shot. On cross-examination he again stated that he gave no statement at the hospital and said nothing at all — “I told them I didn’t know anything about it.” Questioned by the court ¹²⁶ he said the police told him they wanted to talk to him about some robberies and that if he did those robberies and told about them, when “he got downtown, it would only be one charge” against him.

The police did not say how many robberies he was supposed to have done, but asked if the police gave him the places or the persons he was supposed to have robbed, he said they “named about five” but he made no statement with respect to any of them. In rebuttal Catania denied that he or any officer in his presence had offered the appellant immunity from prosecution of other offenses if he gave a statement as to any one particular offense and offered him no immunity whatsoever. In answer to questions by the court Catania said they talked to him about other robberies — “I think six” — but specifically denied that he or anyone else told the appellant “that if he gave you a statement about the robberies, that when he got downtown, he would only have to face one charge.” He was present at all times when the appellant was being questioned by him, by the lieutenant and by the sergeant. At this point the trial was continued to enable the defense to obtain the presence of the appellant’s sister, Gladys Aye.

The next day defense counsel reported that she was not present — “she says she is sick.” The appellant’s wife, Barbara Spell, testified on the issue. She said she saw the appellant in the hospital the day after he was shot. He was in “intensive care * * * he had tubes up his nose and his chest.” She and Gladys Aye went to the hospital together in a cab the day after her husband was shot. About five or ten minutes later Catania, Sgt.

Vogelsang and “another sergeant” came in. She heard the conversation: ¹²⁷ She was there the entire time the police were there. She denied hearing the police say anything or read anything to the appellant before they started questioning him. She did not talk to her husband at any time because “he