Walker v. State

Moylan, J., delivered the opinion of the Court. The appellant, Charles Walker, Jr., was convicted in the Circuit Court for Worcester County by a jury, presided over by Judge Daniel T. Prettyman, of murder in ⁶⁸⁷ the second degree, attempted robbery with a dangerous and deadly weapon, attempted robbery, assault with intent to rob and simple assault. He was sentenced to a term of twenty years imprisonment on the murder count and to terms of five years imprisonment on each of the other four courits, the latter four sentences to be served concurrently with the twenty-year term. The sole question presented by the appellant on this appeal is whether his confession was properly admitted into evidence against him.

The crimes in this case, all arising out of an attempted robbery of a gas station, occurred on February 11, 1969, in Dorchester County. The appellant was arrested almost one year later on February 2, 1970. He was indicted by the Grand Jury for Dorchester County on February 16, 1970. Through his counsel, he filed on February 18, 1970, a written motion to suppress any statement or confession obtained from him by the police.

A full preliminary hearing was held on that motion before Judge C. Burnam Mace on February 24, 1970. Judge Mace ruled that the statement was voluntary. On February 24, 1970, the appellant had filed a written motion for removal of his case from Dorchester County. Judge Mace ordered the removal on March 6, 1970, to Worcester County.

In that county, the case came on for trial before Judge Prettyman and a jury on June 22, 23 and 24,1970. When the State reached the point in its case in chief at which the appellant’s confession was to be offered, Judge Prettyman made clear his position that, on the question of admissibility, he felt bound by the pretrial ruling made by Judge Mace at the suppression hearing. Judge Prettyman announced: “Just go ahead and put it in. It has already been ruled on.

The purpose of the preliminary determination, under the motion to suppress, the statement in which you filed, serves exactly the same purpose ⁶⁸⁸ as would be served had you waited until the trial of the case, and objected to the entering of a statement, which upon the State would have been obliged to produce the evidence in regard to the voluntariness and admissibility of the statement. In that event, of course, the jury would have been excluded, the determination made and, then, if ruled admissible, the same evidence would be presented for the benefit of the jury, to place them in possession of all of the facts surrounding the taking of the statements so that they could weigh the effect of the statement, give it such weight as they wished to give it. However, because this matter has been determined in a preliminary manner then that removes the necessity for doing it during the trial, and that is the purpose of the preliminary determination, and it is of advantage to the Court that counsel do make these objections known, as preliminary matters, so that can be disposed of without the jury sitting for hours waiting for a determination. Now, the Court is now bound by the preliminary determination that it is prima facie admissible.

The evidence goes in and then if counsel for the Defense wishes to make an objection again, well, then, it can then make the objection again.” The appellant entered a timely objection both to the admission of the confession and to Judge Prettyman’s reluctance to readjudicate the question of admissibility. Judge Prettyman made it clear that all evidence from either party bearing on the issue of voluntariness would be offered before the jury so that the jury could make its ultimate determination upon whether the confession had been shown to be voluntary beyond a reasonable doubt. Judge Prettyman also indicated that if, as the evidence on the issue of voluntariness unfolded, there should develop any material difference between the evi ⁶⁸⁹ dence presented at the trial and that presented at the preliminary hearing, he would feel free to make his own independent decision on the question of admissibility. Both parties then proceeded to present to the jury their cases on the question of voluntariness.

The only significant additional testimony presented that had not been presented at the suppression hearing was a series of reports about the appellant made by the Maryland Children’s Center in 1969, including a Social Service evaluation, a psychiatric evaluation, a psychological evaluation, a medical summary, a group living examination and a group school report. Judge Prettyman commented that he did not think these reports shifted the balance on the question of voluntariness in any way. He, therefore, felt constrained not to substitute his judgment for that of Judge Mace. McChan v. State, 9 Md. App. 317 , holds that it is proper for the trial judge to accept the findings of a pretrial suppression hearing as fully dispositive of any issue of admissibility ruled upon at the suppression hearing.

This Court, in dealing with a pretrial ruling on the issue of identification which was accepted by the trial court, held, at 322: “The court found that the motion had been ruled on by a court of competent jurisdiction and that it would not entertain the motion because ‘the matter has already been ruled on.’ We agree that the trial court was not obliged to hear and determine the motion to suppress the identification evidence which had already been fully heard and determined.” See also Hutchinson v. State, 9 Md. App. 41, 45 , and State v. Hutchinson, 260 Md. 227 . While we agree that a trial judge may accept the pretrial finding as res judicata and is under no obligation to readjudicate a settled question, we do not agree that he need feel bound by a pre-trial ruling with which he is in strong disagreement. In the case at bar, Judge Pret ⁶⁹⁰ tyman forcefully concluded that a fundamental constitutional right of this appellant had been violated. We agree with that conclusion.

We cannot agree that he was powerless to interpose himself under those circumstances. It follows that we also disagree with the. ruling on the admissibility of the confession made at the pre-trial suppression hearing. Because it parallels so closely our own view on the voluntariness vel non of the confession as we make our independent constitutional judgment thereon, we feel it meet to repeat the analysis made by Judge Prettyman: “Now, let me say this, if I were to rule upon the admissibility of this statement it would never go into evidence. I think that the totality of the circumstances is such that there has been effectively, although perhaps not deliberate, and perhaps not articulated, coercion when a fifteen year old boy, with a dubious eighth grade education, who functions at such a level that he cannot do the simplest arithmetic problems, and remedial training in all basic learning is recommended, and who gives the obvious appearance of being dull, is taken from his home, at 10 o'clock at night, carried to a police station, makes the request to call his mother, and his mother does, in fact, call the police station, after he has made such requests, but he is not informed that she is on the phone, nor is he permitted to talk with her, when the mother is not informed of the nature of the charge, when the mother is not informed that the child is to be questioned, and who informs the police that she will arrive the next morning, and, then, he is taken to Easton, for what I would concede to be perfectly legitimately police investigation and police work, and according to the witness Cox, it was carried out in a routine and perfectly acceptable and laudatory manner, however, he ⁶⁹¹ was then placed alone in the basement of a headquarter’s building, in a cell, without light, and there to remain until the following morning, when he is taken to an office, and sits in a chair for at least three hours, without even the offer of breakfast, without the offer of water, in effect, without food nor drink from dinner the night before until lunch the day following, and when he again requested the right to telephone a woman, with whom he had spent all of his formative years, from the age of seven or eight to the age of fourteen or fifteen, and he is again denied that right, and, as Mr. Fox says, in desperation then starts to call for the Sheriff or co-defendant, and is refused, then I suspect, that had he only been refused the right to call Clevon, I wouldn’t be at all upset; but even then, I’m not sure but what, in his juvenile mind, Clevon would be such a person as to whom he could place confidence for advice under these trying circumstances.

I believe that under all of those facts, that it will be very difficult for an appellate court to find that the confession is admissible. However, I do not honestly believe that under the procedure in Maryland, as of this day, I am at liberty to set aside the previous determination made by the Circuit Court on this issue. There has not been, in my opinion, deduced here any material change in the evidence that would justify this Court in taking the drastic action of setting aside the determination of Judge Mace.” In looking at the propriety of the determination made at the suppression hearing, a word is in order about the scope of our review. The standard was well-articulated by the Supreme Court in Davis v. North Carolina, 384 U. S. 737 , 741-742: “It is our duty in this case, however, as in all of ⁶⁹² our prior cases dealing with the question whether a confession was involuntarily given, to examine the entire record and make an independent determination of the ultimate issue of voluntariness.

E.g., Haynes v. Washington, 373 U. S. 503, 515-516 , 10 L.Ed.2d 513, 521, 522 , 83 S. Ct. 1336 (1963) ; Blackburn v. Alabama, 361 U. S. 199, 205 , 4 L.Ed.2d 242, 247 , 80 S. Ct. 274 (1960) ; Ashcraft v. Tennessee, 322 U. S. 143, 147-148 , 88 L. Ed. 1192, 1195, 1196 , 64 S. Ct. 921 (1944).” In Haynes v. Washington, 373 U. S. 503 , the Supreme Court said, at 515-516: “It is well settled that the duty of constitutional adjudication resting upon this Court requires that the question whether the Due Process Clause of the Fourteenth Amendment has been violated by admission into evidence of a coerced confession be the subject of an independent determination here, see, e.g., Ashcraft v. Tennessee, 322 U. S. 143, 147, 148 , 88 L. Ed. 1192, 1195, 1196 , 64 S. Ct. 921 ; ‘we cannot escape the responsibility of making our own examination of the record,’ Spano v. New York, 360 U. S. 315, 316 , 3 L.Ed.2d 1265, 1267 , 79 S. Ct. 1202 . While, for purposes of review in this Court, the determination of the trial judge or of the jury will ordinarily be taken to resolve evidentiary conflicts and may be entitled to some weight even with respect to the ultimate conclusion on. the crucial issue of voluntariness, we cannot avoid our responsibilities by permitting ourselves to be ‘completely bound by state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding.’ Stein v. New York, 346 U. S. 156, 181 , 97 L. Ed. 1522, 1540 , 73 S. Ct. 1077 .” ⁶⁹³ In reviewing the admissibility of a confession, this Court has always recognized its obligation to make an independent review of the record. As we said in Dennis v. Warden, 6 Md. App. 295 , 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.” Again, in Gardner v. State, 10 Md. App. 233 , we said at 245: “It is true that in reaching the preliminary decision as to the voluntariness of the statement the court need not find beyond a reasonable doubt that the confession was voluntary; the only duty of the trial court at that point is to decide whether the prima facie proof was such as to establish that the confession was freely and voluntarily made.

So the preliminary decision of the court as to the admissibility of the confession, made within the required constitutional framework, will not be disturbed on appeal unless there was a clear abuse of discretion. Barnhart v. State, supra, at 224-226. But in determining whether the court made its decision within the required constitutional framework we must do so within the rule that ‘ [w] hen constitutional rights turn on the resolution of a factual dispute we are duty bound to make an independent examination of the evidence in the record.’ Brookhart v. Janis, 384 U. S. 1 , note 4 at p. 4.” In his concurring opinion in Dillingham v. State, ⁶⁹⁴ 9 Md. App. 669 , Judge Orth thoroughly analyzed the development of this doctrine of independent judgment from an examination of the whole record where questions of constitutional right are concerned. After discussing the impact of Jacobellis v. Ohio, 378 U. S. 184, 187-188 ; Bachellar v. Maryland, 90 S. Ct. 1312, 1313 ; Fiske v. Kansas, 274 U. S. 380, 385 ; Pennekamp v. Florida, 328 U. S. 331, 335 ; Stein v. New York, 346 U. S. 156, 181-182 ; Blackburn v. Alabama, 361 U. S. 199, 205 ; Edwards v. South Carolina, 372 U. S. 229, 235 ; Haynes v. Washington, 373 U. S. 503, 515-516 ; and Cox v. Louisiana, 379 U. S. 536, 545 , he concluded, at 714: “I think that the effect of the opinions of the Supreme Court is that when a violation of a constitutional right is asserted and properly before us on appeal the clearly erroneous rule as to the lower court’s judgment on the evidence, in a non-jury case, and, the rule that the trial court did not err in permitting the case to go to the jury if there was any evidence or rational inferences therefrom on which the jury could find the accused guilty beyond a reasonable doubt, in a jury case, are not appropriate with regard to the constitutional question.

Rather we must resolve the matter by our own independent appraisal of the entire record, . . .” See Wagonheim v. Maryland State Board of Censors, 255 Md. 297, 306 ; Sanza v. Maryland State Board of Censors, 245 Md. 319, 330 . Where the resolution of a purely factual question is all that is involved, we, of necessity, give great weight to the finding of the hearing judge, and his decision will not be disturbed on appeal unless we find a clear abuse of discretion. The preliminary decision on the admissibility of a confession, however, be that decision made at a pretrial suppression hearing or while the jury is excused during the course of trial, is “a mixed question of law and fact.” Mulligan v. State, 10 Md. App. 429, 431 , ⁶⁹⁵ n. 1; Barnhart v. State, 5 Md. App. 222, 224 . It is, therefore, a situation “where a conclusion of law as to a [constitutional] right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the [constitutional] question, to analyze the facts.” Fiske v. Kansas, supra, 385.

We accord “an appropriate and substantial effect to [the trial court’s] resolutions of conflicts in evidence as to the occurrence or non-occurrence of factual events and happenings . . . But . . . We cannot be precluded . . . from determining whether the circumstances under which the confession was made were such that its admission in evidence amounts to a denial of due process.” Haynes v. Washington, supra, 515, 516. 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 nonexistence of voluntariness.

In making our independent, reflective constitutional judgment on the facts, a further word is in order about the substantive law to be applied. A substantial body of law has evolved in this State since Nicholson v. State, 38 Md. 140 (1873), and an equally substantial and not dissimilar body of law has evolved in the Supreme Court since Brown v. Mississippi, 297 U. S. 278 (1936), on the subject of confessions and their admissibility. Those parallel evolutions and the end product of those evolutions as to what constitutes a “voluntary” confession have been thoroughly discussed in Barnhart v. State, supra, and Dennis v. Warden, supra, 297-300. “The basic standard governing the admissibility of an extrajudicial statement ⁶⁹⁶ is whether, considering the totality of the circumstances, the statement was voluntary ... To be voluntary, a statement cannot be ‘extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.’ Keller v. State, 2 Md. App. 623, 626-627, quoting Malloy v. Hogan, 378 U. S. 1, 7 .” See Gardner v. State, supra, 235, n. 1.

Perhaps the best summation of the ultimate issue to be resolved, in terms of traditional voluntariness, was framed by Chief Judge Murphy in Robinson v. State, 3 Md. App. 666, at 672 , “We think the proper test to be applied in determining the voluntariness of appellant’s confession . . . is . . . whether, under all of the circumstances, it was the product of a free and unconstrained will which had not been overborne or compelled.” The seminal case of Miranda v. Arizona, 384 U. S. 436 , did not supersede pre-existing law on voluntariness. It simply added an additional dimension to that law. As this Court has frequently said, the holdings of Miranda were “impressed on that [pre-existing] standard.” Gardner v. State, supra, 235; McCoy v. State, 8 Md. App. 127, 129 ; McCarson v. State, 8 Md. App. 20, 22 ; Dennis v. Warden, supra, 297-299; Hale v. State, 5 Md. App. 326, 330-331 . Our decision here that the confession was involuntary does not hinge upon whether Miranda was technically complied with or not.

Upon our independent, reflective constitutional judgment, we feel that, under the totality of the circumstances, the confession here was involuntary even by pre-Miranda standards. The appellant was arrested without a warrant at approximately 9 P.M. on February 2, 1970. He was taken to the Cambridge Police Station. At the time of arrest, the appellant had just passed his 16th birthday.

He had dropped out of school while in the ninth grade. While in the Cambridge Police Station, the appellant was kept in the squad room. It is undisputed that he was there confronted with Cambridge Police Chief Brice H. Kinna ⁶⁹⁷ mon and Dorchester County State’s Attorney William B. Yates. At one time or another, he was also in the presence of Sergeant Russell Wroten and State Trooper Donald H. Cox.

Chief Kinnamon testified that he and Mr. Yates informed the appellant that he was charged with murder. The appellant testified that he was questioned about the murder by Mr. Yates and Chief Kinnamon: “Q. Who questioned you ? A. Yates and (indicating). Q. Chief?

A. Yes. Q. For how long did they question you there? A. Until one o’clock. Q. What kind of questions did they ask you ?.

A. Him first; Mr. Yates asked me, he said ‘Have you ever been downtown for any serious trouble?’ and I said “I haven’t been down here for stealing or anything like that.’, and then he said, ‘You’re in serious trouble now — ’, he said ‘ — for murdering — ’ —I can’t think of the man’s name. Then he talked to me and asked me if I wanted to make a statement. He then got mad, kind of angry, and said to the Chief ‘Why do you want to talk to something like that? Charles Walker, I am charging you with the murder of — ’ somebody, I can’t think of the man’s name — ; he left, but said he was going to get his secretary or somebody to type it up.

Q. Then, did he subsequently bring a warrant back to you and read it to you ? A. No.” “Q. Did the Chief also talk to you at City Police Headquarters ? A. Yes. Q. What did he say to you ? ⁶⁹⁸ A. He was saying ‘You just better get it off your chest; I know you have been thinking about it for a long time.

I am sure you want to get it off your chest. Just let it come out and talk to us/ I decided not to say nothing to them.” Chief Kinnamon denied that the appellant was questioned at the Cambridge Police Station. It was undisputed, however, that at no time on the night of February 2 was the appellant ever informed of his Miranda rights, including his right to the assistance of counsel. It is also undisputed that no police official took any affirmative step to inform any member of the appellant’s family of his predicament.

Nor was the appellant ever advised of his privilege to contact anyone. Chief Kinnamon testified that the appellant was kept at the Cambridge Police Headquarters for about an hour, leaving “a little after eleven o’clock.” The appellant testified that he left Cambridge for Easton at 1:10 A.M. on the morning of February 3, Trooper Cox of the State Police testified that he received a call from Sergeant Wroten at approximately midnight, in response to which he came to the Cambridge Police Station. Trooper Cox further testified that it was at 1:30 A.M. that he notified State Troopers Royer and Barnett to proceed to Cambridge and then to transport the appellant to the Easton State Police Barracks, at the request of Chief Kinnamon. The appellant was so transported.

It is also undisputed that while the appellant was being detained in Cambridge, his mother made two attempts by telephone to contact him. She was staying for several days at Hooper’s Island, some 32 miles from Cambridge. During the evening of February 2, she heard from her sister, with whom the appellant had been temporarily staying, that he had been arrested. She immediately telephoned the Cambridge Police Station.

She talked to Sergeant Wroten. In response to her first call, Sergeant Wroten simply informed her that she should wait a few minutes and then call back. She