State v. Fowler

267 A.2d 228, 259 Md. 95, 1970 Md. LEXIS 784

• Court: Court of Appeals of Maryland
• Decided: July 17, 1970
• Docket: [No. 345, September Term, 1969.]
• Status: Published

Opinions

Finan, J.,

delivered the opinion of the Court. Barnes, Singley and Smith, JJ., dissent. Dissenting opinion by Barnes, J., in which Singley and Smith, JJ., concur, at page 108 infra.

This case is before us on a writ of certiorari to the ■Court of Special Appeals. On November 6, 1966, Linda Keller, a nurse's aide, was found brutally beaten and knifed at Church Home and Hospital in Baltimore. She died five days later without ever having regained consciousness. On March 25, 1967, William Fowler, the defendant was taken into police custody. After six days of interrogation, Fowler signed a confession admitting to the murder of Miss Keller.

The defendant was indicted for first degree murder and rape. The case was tried before a jury in the Criminal Court of Baltimore with Judge Perrott presiding. The ■confession, which was the major piece of evidence produced by the State, was introduced over the objection of defense counsel that it was not voluntarily given and that the defendant had been denied his Miranda rights. Judge Perrott ruled the confession was admissible after hearing testimony concerning its voluntary nature out of the range of the jury. On July 30, 1967 the jury returned its verdict finding the defendant guilty. The court imposed a life imprisonment sentence for the murder charge and a twenty year term for the rape count.

The case was then appealed to the Court of Special Appeals. Writing for the Court, Chief Judge Murphy, in an able opinion, held the confession should not have been admitted because the defendant had been denied his constitutional right to the assistance of counsel. Upon petition by the State we granted a writ of certiorari to the Court of Special Appeals.

The issue before this Court is the admissibility of the confession into evidence at the defendant’s trial. To reach a decision on this point, the highly complex factual situation which led to the confession must be closely examined. On March 25, 1967, more than five months after the slaying, Detective Vincent DiCarlo of the Baltimore City Police Department went to Fowler’s house to question him in connection with the theft of a money order. He was taken to Northeastern Police Station, in the City of Baltimore, where he was interrogated from 4:30 to 5:30 P.M. by Sergeant Charles Siford. The interrogation did not concern the Keller homicide. A reading of the record reveals that the warnings he gave Fowler concerning his constitutional rights, met the Miranda test. The record is silent as to what response Fowler made to these warnings.

Siford later interrogated him, that night, from 7:30 to 9:30 P.M. He again advised him of his rights but the record is silent as to Fowler’s response.

On March 26, the defendant was further questioned by Siford from 1:45 to 3:45 P.M. During this day he was allowed to talk to his wife and two of his brothers. He was again advised of his rights but the record does not reveal his response.

The following morning he was given a polygraph test. After lunch he was taken downtown to the Homicide Division offices where he was questioned for the first time about the Keller case. That evening he was placed in a lineup in regard to an unrelated offense. Once again there is testimony that his Miranda rights were given but there is no indication as to his response.

On March 28, he was again interrogated by Homicide about the Keller murder. He also spoke to his mother and wife during the day. The record reveals he was advised of his Miranda rights prior to questioning but it does not contain any indication of Fowler’s response. Testimony of his interrogators reveals that Fowler denied any knowledge of the Keller murder.

On March 29, Fowler was questioned by Sergeant Si-ford about offenses unrelated to the Keller homicide. He was then given a preliminary hearing on another charge. The result of this hearing was that he was to be held for action of the Grand Jury and placed in the Baltimore City Jail.

For the five day period from March 25 through March 29, the record reveals that Fowler was questioned several times about a number of offenses. On the 27th and 28th he was interrogated about the Keller murder and denied any relation to or knowledge of it. Before each interrogation the officers testified that they warned Fowler of his Miranda rights. However, at no point is there any testimony as to his response at hearing these rights.

The defendant’s testimony concerning this five day period is that he was advised of his rights only on March 26th. He also testified that he asked the police for an attorney approximately twenty times (this was denied by the police), and that in the interviews with his relatives he asked them to obtain an attorney for him.

This brings us to March 30, the day upon which the confession was obtained. At 3:15 P.M. the defendant was taken from the Baltimore City Jail to Homicide Division for further questioning. He was removed from jail on the authority of a writ the nature and terms of which are not shown in the record. The interrogation began at 3:45 F.M. and was led by Captain Anton Glover in the presence of Officers, Siford, Bosak, DiCarlo, and Folio.

Captain Glover testified that he warned the defendant of his rights as follows:

“The right to counsel, if he couldn’t afford counsel, counsel would be secured, advised he could remain silent, anything he told us could be used in court against him. He was told if he decided to talk to us, he would have counsel present.”

The record does not reflect defendant’s response to these warnings.

Sergeant Siford testified that at no time did Fowler ask for an attorney. However, defense counsel did elicit the following testimony:

“Q. Did you ever hear him ask anyone for an attorney?

A. He called his brother in my presence, called his brother in the Homicide room, interrupted interrogation to call his brother to see if he had gotten a lawyer.

❖ * *

Q. What did he say [on March 30], he wanted to call his brother to get an attorney?

A. Yes.

Q. What was the first date on which he said this, Sergeant Siford? Was it while you had him in custody at Northeastern ?

A. No. I’m speaking of the interrogation at Homicide on the 30th, that interrogation was interrupted and he asked to use the phone.

Q. To get an attorney?

A.. To call his brother to find out whether or not his brother had contacted an attorney. That is exactly what he said.”

Siford further testified that the interrogation continued because Fowler “didn’t stress that he wanted an attorney.”

“Q. Did he not express to you the fact that he wanted his brother to get an attorney for him.

A. Sounded like he wanted his brother to get an attorney.

H*

“Q. It was your understanding, was it not, that the defendant in this case wanted an attorney through his brother * * * ?

A. Yes but it was to no one. We didn’t understand that he did not ask for an attorney at this time, at the interrogation, because when Captain Glover advised him, he made it very clear that any time if the defendant wanted the interrogation stopped and wanted the lawyer present, he could so have the lawyer.”

At approximately 4:20 P.M., Leonard Briscoe, an attorney, arrived at the interrogation room to speak to Fowler. He had been sent by Milton Allen, an attorney with an office in downtown Baltimore, to interview the defendant. Mr. Allen had been contacted about the case by a member of Fowler’s family. Mr. Briscoe testified that he asked to be left alone with the defendant. Captain Glover and Detective DiCarlo acknowledged hearing the request while Officers Siford, Bosak, and Folio testified that they never heard such a request.

Briscoe alleged that there were some officers in the room at all times. Captain Glover maintained that “everyone left the room with the exception of the defendant and counsel.” Detective Bosak testified that he thought Glover remained in the room because all of the officers were huddled in one area of the room about fifteen feet from the defendant and Briscoe. The room was approximately 12 by 20 feet.

Sergeant Siford’s testimony on this issue is as follows:

“A. Well, I personally went over by the door. I don’t know exactly what the other officers did. I think some of them may have went outside. I don’t know.

Q. Where was the door in relation to Mr. Fowler?

A. I guess about five or six feet away.”

Detective Folio testified that Siford, Glover and Bosak all stood by the door while he and DiCarlo stood alongside the door.

Briscoe reported that because of the proximity of the officers he did not ask appellant about the case. He took down some background information and told Fowler, “Remember you don’t have to make any statement.” He maintains that he was unaware that Fowler was a suspect in the Keller homicide at the time of this interview. Briscoe admits asking Glover whether Glover had advised Fowler of his Miranda rights. Glover responded affirmatively and Fowler nodded in agreement.

Glover testified that at 4:35 P.M. Briscoe called the police back into the room and that he told Briscoe he had advised Fowler of his Miranda rights. He then asked Briscoe if he wished to remain and that Briscoe left at 5:30 P.M. to talk to another client. Glover later testified that Briscoe left at 4:35 P.M.

After he left Homicide, Briscoe returned to attorney Milton Allen’s office and informed him of what had transpired. Allen then called Captain Glover. Allen testified that he told him to stop questioning Fowler until he got there and that Glover agreed to this. Glover denies receiving such a call.

Upon Briscoe’s departure, the police continued their interrogation of Fowler. Detective Bosak testified that until 6:00 P.M. Fowler continued to deny involvement in the Keller murder. At about this time, the defendant asked to speak to Sergeant Siford alone. Siford relates that the defendant began to cry and stated he killed Miss Keller. Captain Glover was then called in and Fowler repeated what he told Siford. Glover then gave the defendant a written mimeographed waiver form which stated in detail the Miranda warnings and concluded as follows:

“After reading the above and having my rights thoroughly explained to me, I, William B. Fowler, wish to talk to the police without an attorney present and this wish is of my own free volition without any threats or promises.”

Fowler signed this waiver at about 6:10 P.M. He then talked to the officers about the crime until 6:40 P.M. From 6:40 to 8:30 P.M. his statement was reduced to writing.

On cross-examination Captain Glover was asked why the waiver was not executed when the defendant was first brought into the room at 3:45 P.M.

“Q. Having been advised of his rights why wasn’t a waiver taken at that particular time?

A. Why should we take a waiver? He didn’t indicate he wanted to give a statement.

Q. At this particular time, 3:45 P.M. he indicated he didn’t want to give a statement ?

“A. He didn’t indicate that he did not wish to talk to us.

Q. What did he indicate ?

A. He spoke to us until such time as Mr. Briscoe arrived.”

Fowlers’ testimony is that when Briscoe left, Captain Glover threatened to leave him alone with Detective Bosak and that Sergeant Siford told him Bosak would beat him until he confessed. He then alleges that he requested permission to call attorney Milton Allen which was denied. He finally signed the statement because he was “sick of being pressed” and because Captain Glover said that it wouldn’t come up in court.

Upon this record, the trial court had to make its determination as to whether the confession should be admitted into evidence. The trial judge noted that the defendant was never told by his attorney not to talk to the police and that he never made a request directly to the police for counsel. The trial judge posed to himself the analytical question: “Should not the request emanate from the defendant (A) I want counsel; (B) refuse to talk until my counsel is present?” His conclusion was to allow the confession into evidence.

The legal issue before us is clear: Was the confession of the defendant voluntarily given? Any determination of voluntariness is to a large degree dependent upon the standards set forth by the United States Supreme Court in Miranda v. Arizona, 384 U. S. 436 (1966). A basic premise of that opinion was that confessions obtained through custodial interrogation by police may be unreliable because of the potentially coercive atmosphere which might surround such interrogations. In order to safeguard the reliability of such confessions and to assure that the defendant is aware of his privilege against self-incrimination (Fifth Amendment) and his right to the assistance of counsel (Sixth Amendment), the Court set forward a procedure which the police must follow prior to their interrogation of a suspect. This procedure adopted by this Court and the Court of Special Appeals, in Miller v. State, 251 Md. 362 (1968); Hale v. State, 5 Md. App. 326 (1968); Mullaney v. State, 5 Md. App. 248 (1968); Brown v. State, 3 Md. App. 313 (1968); and Robinson v. State, 1 Md. App. 522 (1967), includes the enumeration of the following four basic warnings and rights:

(1) The person interrogated has the right to remain silent.

(2) Any statement which he makes can be used against him.

(3) He has a right to consult with counsel and to have counsel present during interrogation.

(4) The State will provide him with counsel if he cannot afford an attorney.

If, in light of these safeguards, a suspect is still willing to make a statement to the police, this is a good indication that the statement was freely made and not the product of a coercive atmosphere.

The Miranda opinion makes clear that a mere perfunctory reading of the four safeguards is not enough to assure the voluntariness of the confession. The State has the burden to show that the suspect intelligently and knowingly waived his constitutional rights. Thus the obtaining of the confession is not to be equated to a game between the police and the suspect. Chief Justice Warren, the author of the majority opinion in Miranda, was well aware the decision would make it more difficult to obtain confessions, but concluded that more important values would be served by following these procedures.

With this background in mind, we must attempt to ascertain whether the defendant chose to make a voluntary confession to the police after six days of interrogation even though he knew that he could remain silent, that what he said might be used against him, and that he could consult with and have a lawyer present. Our concern is not with whether his choice was tactically wise, but whether it was made with a full understanding of his rights.

There is sufficient testimony in the record to conclude that the police did read and advise Fowler of his Miranda rights prior to each interrogation. However, it is of little avail to the defendant to have his rights fully explained to him, if, in fact, they are denied him. It also goes to the heart of the voluntary quality of his actions if a right is exercised in such an atmosphere and under such conditions as to convey to the defendant, intentionally or unintentionally, a wrong impression as to what a specific right may consist of. This strikes at the core of whether he can subsequently make an intelligent waiver of a right regarding which his only knowledge is formed from an abortive and frustrating exposure to it. In the instant, case we find an intertwining abuse of the defendant’s rights under the Fifth and Sixth Amendments of the United States Constitution. One of the safeguards provided an accused under the Sixth Amendment is the right to the effective assistance of counsel at all critical stages of the criminal proceedings. Escobedo v. Illinois, 378 U. S. 478 (1964). It is also clear that in order to fully implement one’s privileges against self-incrimination, the Court in Miranda, required the police to allow a suspect to consult with an attorney and to have one present during interrogation. See Duckett v. State, 3 Md. App. 563 (1968). The testimony of attorney Briscoe, the defendant Fowler, and four of the five officers is that there were at least some officers in the room at all times during the accused’s interview with his attorney. The officers were anywhere from five to fifteen feet away from Fowler and Briscoe in a room which was twelve by twenty feet. We do not think this is the type of consultation with counsel which Escobedo and Miranda envisioned. The Miranda opinion emphasizes that it is the psychological effect of the police-dominated atmosphere which tends to have a coercive effect upon the free will of the suspect and forces him to surrender his privilege against self-incrimination. The mere presence of the officers continued the police-dominated atmosphere in which the suspect had found himself for the last six days. Their mere presence may have intimidated Fowler from inquiring of Briscoe about the extent of his Miranda rights or from revealing to his counsel any abuses to which he may have been subject. We also note that Briscoe told the defendant not to reveal anything about the case because the officers might overhear it. However, Briscoe was not even aware at that time that the man was a murder suspect. Had he been able to consult in private, he may have found this out and perhaps would not have left Fowler alone. He may have advised him as to other matters vital to his defense. While this may be speculative, the burden is not upon the defendant to demonstrate what would have happened had he been accorded his right to consult with counsel.

The dissenting opinion emphasizes the fact that the police officers present, while attorney Briscoe was in the interrogation room with the accused, could not overhear the conversation between Briscoe and the accused and implies that the circumstances provided all the safeguard necessary to assure effective communication between attorney and client. This rationalization misses the point, that it is not the question of whether the police officers could overhear the conversation between Briscoe and the accused, but rather whether the presence of the officers created or gave the impression to Briscoe and the accused that their conversation was being monitored and thus prevented effective communication between the accused and his counsel, as contemplated by Escobedo and Miranda.

Writing for the Court of Special Appeals, Chief Judge Murphy stated: “We do not hold that an accused undergoing custodial interrogation is denied the effective assistance of counsel in every case where a police officer is present in the area of the attorney-client consultation. The right of the person being questioned to consult with an attorney may, of course, be subjected to reasonable security safeguards,” 6 Md. App. at 672. The dissenting opinion offers security reasons as the justification for the presence of police officers in the doorway of the interrogation room or in the room itself. The opinion further proposes that the officers may have thought that the accused might attempt to commit suicide and suggests that this is indicated by the fact that the accused had been required to remove most of his clothing. We view this latter precaution as nothing more than routine custodial procedure, as it is almost a standard operation in a place of detention to require the person incarcerated to remove belt, suspenders, necktie and even heavy shoelaces. In the case at bar it is a gratuitous assumption, not warranted from the facts contained in the record, to infer that the officers remained in the interrogation room for security reasons.

In this posture of the case, the fact that Fowler, a few hours later signed a waiver of his right to consult with counsel is hardly meaningful. His only acquaintance and experience with this right was an interview at which time he was surrounded by his inquisitors. Thus he could not have fully understood the right which he waived. Rock v. State, 6 Md. App. 618 (1969), and Hale v. Stale, 5 Md. App. 326 (1968). Thus, this denial of his right to effective consultation with counsel, guaranteed to him under the Sixth Amendment, may well have resulted in an erroneous judgment on his part regarding the nature of the right to counsel. This in turn affects the quality of his volition in executing the waiver of his rights under the Fifth Amendment.

It is not our purpose or intent, by this opinion, to enlarge the scope of Miranda; however, we deem it appropriate before concluding, to register our approval of the change in the practice of the Baltimore Police Department. Presently, they obtain a written waiver from the accused of his rights, as enunciated by Miranda, prior to interrogation instead, as was done in the instant case, of waiting until after six consecutive days of interrogation. See Fowler v. State, 6 Md. App. 651 at 659.

We are also disconcerted by those facts in the record which reveal, through the State’s own witness, that questioning continued after the accused indicated that he wanted his brother to secure an attorney for him. The Miranda opinion provides: “If he [accused] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning.” Sergeant Siford (who had played “Jeff” to officer Bosak’s “Mutt” in a sequence similar to that mentioned by Mr. Chief Justice Warren in Miranda, 384 U. S. at p. 466), testified that, “it sounded like he wanted his brother to get an attorney.” Since the record is silent as to any response made by Fowler after the Miranda warnings were read each day, this testimony raises the question that there was a strong probability that neither the accused or the officers understood that he could have an attorney present before there would be further questioning. Sergeant Siford’s apparent rationalization is that the questioning continued because the accused “didn’t stress that he wanted an attorney.” There is nothing in Miranda requiring emphatic demand on the part of the accused.

In sum, the factual setting under which this confession was obtained does little to inspire the belief that it was the result of a voluntary choice by a person who desired to give a statement knowing full well that he could remain silent and have an attorney present to advise him. We therefore conclude that in the process of obtaining his statement, the defendant’s rights under the Fifth and Sixth Amendment of the Constitution of the United States were violated and accordingly it should not have been admitted into evidence.

Judgment of Court of Special Appeals, reversing judgments below and remanding case for new trial, affirmed. Appellant to pay costs.