Westfall v. State

⁴¹⁶ Marbury, J., delivered the opinion of the Court. Larry D. Westfall, the appellant, was brought to trial in the Criminal Court of Baltimore under indictment No. 1680/64 wherein he was charged with unauthorized use of an automobile and in indictment No. 1681/64, in which he was charged with attempted burglary on April 24, 1964, of the warehouse of the Beth Jacob Congregation. The cases were consolidated, a jury trial was held, Judge Edwin Harlan presiding, and the jury returned a verdict of guilty under both indictments. At the conclusion of the jury trial on July 15, 1964, Judge Harlan, sitting without a jury, proceeded to try the defendant on two other charges arising out of indictment No. 1682/64 in which Westfall was charged with burglary of the Beth Jacob Congregation on February 14, 1964, and under indictment No. 1683/64 in which he was charged with a similar offense on January 25, 1964.

Judge Harlan found the defendant guilty of both charges, and after a delay caused by the consideration of Westfall’s unsuccessful motions for new trials, he was, on March 16, 1965, sentenced to serve not more than three years in the Maryland Correctional Institution for each of the four offenses, with the four sentences to run concurrently. From these judgments and sentences the appellant filed this consolidated appeal. Unlike many criminal appellants, Westfall does not here raise the issue that the evidence adduced at the two trials below was insufficient to convict him, and for that reason we do not find it necessary to set forth in any detail the evidence produced by the State which linked Westfall with the four crimes above mentioned. For our purposes it will suffice to merely note that the combined testimony of the prosecuting witnesses, that of Charles Trenchard, who was a co-indictee in all four of the above numbered indictments, along with the testimony of two Baltimore City police officers as to oral admissions allegedly made by Westfall to them while in custody, was, if believed, sufficient evidence from which the triers of fact could properly have found that the four crimes had been committed, and that defendant Westfall unlawfully participated in their perpetration.

Raised on this appeal are'three questions: (1) Was the ap ⁴¹⁷ pellant’s oral confession, made while in police custody, properly admitted into evidence against him; (2) did Judge Harlan commit reversible error by allowing the appellant to be cross-examined during the jury trial about his earlier confinement in the Maryland Training School for Boys; and (3) did the trial judge commit reversible error during the jury trial by permitting the State to ask Arnold Ely, one of the defendant’s witnesses, on cross-examination whether he had been indicted for receiving stolen goods from the defendant and his co-indictee, Trenchard. I In defendant-appellant’s first trial for attempted burglary and unauthorized use of an automobile, Detective Robert DePaola and Sergeant Joseph Ulsch, of the Baltimore City Police, testified, out of the presence of the jury, in regard to the voluntariness of the oral confession which appellant allegedly made to them. They testified that on Sunday morning, April 26, 1964, West-fall voluntarily turned himself in at the North Western Police Station after he had learned that the police were looking for him (a warrant had been issued for his arrest) in connection with the attempted burglary of the Beth Jacob Congregation three days earlier. Both officers testified that from the outset of the interrogation Westfall steadfastly refused to give them a written statement, and that he refused to talk about the crimes if they took notes.

However, even after he had been advised that anything he “told them would be used for or against him in court” the defendant proceeded to give them an oral statement ■—which it later developed was thoroughly inculpatory. According to the police officers the oral confession here involved was obtained as the result of questioning which took place over a two and one half hour period from 11:30 on Sunday morning to 2:00 that afternoon with time out for lunch and numerous interruptions. At the outset of the interrogation Westfall was confronted with a written statement which earlier had been given to the police by Charles Trenchard wherein he spelled out the participation by himself and Westfall in all four crimes. Trenchard’s statement was used as an outline from which the officers questioned the defendant, and in that manner they were able to elicit from Westfall a complete state ⁴¹⁸ ment concerning all four crimes in a period of only about one hour of actual interrogation.

Out of the presence of the jury the eighteen year old defendant took the stand as to the voluntariness of the confession and related that before going down to the police station to turn himself in, he had talked to an attorney over the telephone. His attorney’s advice to him was “not to sign a statement or say anything,” and according to the defendant-appellant he informed the two officers at the outset of the interrogation that upon advice of counsel he was not going to say or sign anything. He testified that one of the policemen informed him, using obscenities, that he didn’t care “if he had forty-nine lawyers” and commenced interrogating him forthwith. The witness further testified that at one point of the police interrogation which lasted “all day” Detective DePaola had said that he should beat his (Westfall’s) head against the wall for “hanging around” with Arnold Ely, the latter being a friend whose company Westfall had chosen while the police were looking for him.

Westfall also stated that Detective DePaola had called him obscene names at various junctures of the interrogation. On cross-examination, however, he admitted that anything he had told the police officers was said of his own free will, that no force was used against him, nor was he offered any immunity or rewards for his statement. Detective DePaola had earlier specifically denied calling the defendant obscene names or having made the statement about beating his head against the wall, and asserted, as had Sergeant Ulsch, that no immunities were offered, that no threats were made, or force used in getting the oral statement, and that it was freely and voluntarily given. After hearing the testimony of the police officers and the defendant, Judge Harlan allowed the oral confession to come into evidence.

When the jury had returned, both officers, for the benefit of the jury, repeated in substance their earlier testimony as to the voluntariness of the oral statement. One slight inconsistency did develop when Sergeant Ulsch told the jury that the defendant had told them at the beginning of the interrogation that upon advice of an attorney he would give them no written statement, whereas he had earlier testified that at the outset of the interrogation defendant did not tell them he had con- ⁴¹⁹ suited an attorney. Detective DePaola then related to the jury what the defendant had admitted during the in-custody interrogation concerning his participation in the two crimes involved in that trial. Westfall also told the jury substantially the same thing he told the trial judge about the circumstances under which he was questioned, except that he said that he had interpreted his lawyer’s advice as meaning not to give the police any written statement.

He further revealed that at one point of the interrogation, the police had offered to bring his father down to the police station, if he so desired. As to the substance of the oral confession, Westfall told the jury, in effect, that he had followed his lawyer’s advice, and when confronted with questions regarding the two crimes he told the officers that “he didn’t know what they were talking about,” and that throughout the hours of questioning no incriminatory words came from his lips. In regard to the merits of the charges against him, the defendant admitted on the stand that he had ridden to the Beth Jacob synagogue on the night of April 24 in the car of which he was the accused unauthorized user and that he was at the scene of the attempted burglary, but, he explained, he had been sent there as a “decoy” by the Baltimore City police so that they might apprehend Charles Trenchard. In the non-jury trial on indictments Nos. 1682/64 and 1683/64 the police as well as Westfall reiterated, in substance, the testimony given earlier to the jury in regard to the voluntariness of the oral confession, and Judge Harlan allowed Detective DePaola to testify to the inculpatory facts regarding the crimes charged in the above indictments which were gleaned from Westfall during the interrogation.

After testifying as to the voluntariness of the oral statement, Westfall did not later resume the stand. On this appeal the appellant contends that it was reversible error to permit the oral confession to be used against him because the testimony of the State’s own witnesses allegedly revealed that appellant: (1) was not effectively advised that his oral statement might be used against him in court, and (2) did not have an attorney present when he was questioned. As ⁴²⁰ pointed out by the appellant, there is no testimony from which we can find that Detective DePaola specifically distinguished between an oral and a written confession after he had advised him that “anything he told me would be used for or against him in court,” and for the purposes of this appeal it will be assumed that Westfall’s aversion to having notes taken during interrogation can be explained on no other premise than that he was laboring under the misconception that an oral confession could not later be used against him, but neither of these facts would compel the trial judge to disallow these statements from coming into evidence. This is true because on the dates on which these two trials were commenced, under the existing Maryland law, even if the defendant had been given absolutely no warning that the statements could later be used against him, it would not make the oral confession inadmissible.

Jenkins v. State, 238 Md. 451, 459 , 209 A. 2d 616 . See also Dyson v. State, 238 Md. 398, 405 , 209 A. 2d 609 , and cases therein cited. Likewise, on