Thomas v. State

Per Curiam. The Appellant, Dick Thomas, was convicted of assault with intent to murder, common-law assault and carrying a deadly weapon by a jury in the Circuit Court for Calvert County, on November 28, 1966, Judge Perry B. Bowen, Jr. presiding. He was sentenced to concurrent eight year terms in the Maryland Penitentiary under the assault and assault with intent to murder convictions and to a two year concurrent term under the deadly weapon charge. The record indicates that on April 16, 1966, a shooting match erupted in a public tavern in Calvert County.

A total of fourteen bullet wounds were inflicted upon the Appellant and four other persons. Evidence produced by the State showed the Appellant to be both instigator and aggressor. Other evidence indicated the aggressor to be Howard Chase, Jr., who was struck by several of the bullets fired from the Appellant’s gun. A Maryland State Trooper testified that on the morning after the crime he located the Appellant in the District of Columbia General Hospital and there obtained his written confession which was admitted into evidence, over objection, at trial.

The Appellant here challenges the admissibility of that confession. The following testimony was elicited from the Trooper by the State on direct examination: “Q. Now prior to taking the statement did you threaten him or promise him in any fashion? A. No sir, I didn’t. Q. Did any one in your presence threaten or promise him in any fashion?

A. No sir. ¹⁰³ Q. Did you advise him of his right to counsel? A. Yes sir, I advised him that he had the right to counsel. Q. Did you advise him that anything that he said, may be used against him in Court? A. Yes sir, I did.

Q. Now sir, did he have an opportunity to read the statement ? A. Yes sir, he did. Q. And after reading the statement, did he sign it? A. Yes sir, he did.” On cross examination the following was elicited from the Trooper: “Q. [By Mr. O’Malley] And what did you tell him in regards to the legal counsel?

A. I advised him that he had the right to obtain legal counsel, I don’t remember the exact words, it is in the statement.” “Q. [By Mr. O’Malley] Did he say he had a lawyer? A. I don’t recall whether he did or not.” * * =1= “Q. [By Mr. O’Malley] Do you recall asking him whether or not he wanted a lawyer? A. I don’t believe so, I may have, I can’t answer that for sure.” The confession here involved was given on April 16, 1966, at a time when the trooper could not have known of the additional safeguards surrounding confessions which were to be announced by the Supreme Court of the United States on June 13, 1966 in Miranda v. Arizona, 384 U. S. 436 . While these safeguards were not accorded retroactivity, Johnson v. New Jersey, 384 U. S. 719 and Westfall v. State, 243 Md. 413 , it is clear that they prevail in this case, the trial of which first began after June 13, 1966.

But see, Boone v. State, 3 Md. App. 11 . Thus, the Appellant’s confession, introduced at his trial on November 29, 1966, was properly admissible only if it was affirmatively shown that its taking was