State v. Fowler

MARYLAND v. STATE OF FOWLER 345, September Term, 1969.] [No. July

Decided 1970. J., Hammond, argued and The cause before C. was JJ., Finan, Singley, Barnes, McWilliams, and re- and J., Barnes, Hammond, argued and C. McWil- before Finan, Digges, JJ. liams, Singley, and Smith General, Attorney Brannan, E. Assistant William Burch, General, Attorney B. Edward whom were Francis Attorney General, Borgerding, and Charles F. Assistant Jr., Attorney City, Moylan, Baltimore E. State’s for brief, appellant. the for McCarthy appellee. for J. William Finan, J., opinion Barnes, the delivered of the Court. Singley JJ., Smith, Dissenting opinion by dissent. Singley J., Smith, JJ., concur, Barnes, which page 108 infra. This is on a certiorari case before us writ of the

n Court 1966, Special Appeals. of On Linda November Keller, aide, brutally a was nurse's found beaten and Hospital knifed at Church Home and Baltimore. She days regained having died five later without ever con- 25, 1967, Fowler, sciousness. On March William the de- days police custody. fendant taken into After six of interrogation, signed admitting a Fowler confession of the murder Keller. Miss degree for

The indicted first murder and defendant was rape. jury case in the The was tried before a Criminal Judge presiding. Court of Baltimore with Perrott The n confession, major piece pro- of evidence which was objection State, introduced over the duced voluntarily given and was not defense counsel that it Judge rights. defendant had been denied his Miranda Perrott ruled the confession was after hear- admissible ing testimony concerning voluntary its nature out range jury. July 30, jury of the On its returned finding guilty. verdict imposed The court imprisonment charge life sentence for murder twenty year rape term count. appealed The Special Ap- case was then to the Court peals. Writing Court, Judge Murphy, for the Chief opinion, able held confession should not have been admitted because the defendant had been denied his con- stitutional Upon peti- assistance of counsel. granted tion the State we a writ of certiorari to the Special Court of Appeals. admissibility issue before this Court

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

Siford to later that from 7:30 again rights 9:30 P.M. He advised him of his but response. record is silent as Fowler’s 26, questioned by On March the defendant was further day During this Siford from 1:45 to 3:45 P.M. he was two He allowed to talk to his wife and of his brothers. again rights but was advised the record not does response. reveal his following morning given polygraph he a

The was test. the Homicide Di-

After lunch he was taken downtown to questioned vision offices where he for the first time evening placed a case. about the Keller That regard again lineup in there to an unrelated offense. Once testimony rights given is his Miranda were there that but response. is no indication as interrogated 28, again On March he was Homicide spoke Keller He about the murder. also his mother day. during the The record he was advised wife reveals questioning prior of his Miranda but it does any response. indication of Testi- contain Fowler’s any interrogators mony reveals that Fowler denied of his knowledge of the Keller murder. 29, questioned Sergeant

On Fowler was Si- March He to the Keller homicide. ford offenses unrelated about hearing charge. given preliminary on another was then hearing was that he was to be held The result of this Jury placed in the Baltimore action Grand City Jail. through period day from March March

For the five questioned that sev- reveals Fowler was the record the 27th and of offenses. On eral times about number interrogated Keller murder about the he was 28th knowledge each any of it. Before or denied relation to they Fow- testified that warned the officers However, rights. point no there is of his Miranda ler rights. hearing response at these testimony to his as day concerning pe- testimony five defendant’s rights only on March of his advised he was riod police for he asked the He also testified 26th. (this twenty denied was attorney approximately times relatives interviews with his in the police), and that attorney him. an to obtain asked them he day upon which brings to March This us P.M. the defendant At 3:15 was obtained. confession City Division to Homicide Jail the Baltimore from taken jail from removed He was questioning. for further are of which and terms nature authority of a writ began interrogation at 3:45 record. in the shown by Captain F.M. and was pres- led Anton in the Glover Officers, Siford, Bosak, DiCarlo, ence and Folio.

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

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

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

Sergeant Siford testified at no time did Fowler However, attorney. for an ask defense counsel did elicit following testimony: “Q. you anyone Did hear ask ever him for an

attorney? my A. He presence, called his brother in called room, his brother in the Homicide inter- rupted interrogation to call his brother gotten if lawyer. see he had

v ^{[*] [*]} Q. say 30], What did he March [on wanted get

to call attorney? his brother to an A. Yes.

Q. What was the first date on which this, he said

Sergeant you Siford? Was it while had him custody at ? Northeastern speaking A. No. I’m interrogation 30th, Homicide on the interrogation interrupted and he asked to use the phone.

Q. get attorney? To

A.. call To his brother to find out whether or

not his brother had an attorney. contacted exactly That is what he said.” further testified

Siford that the continued an attor- he wanted “didn’t stress that because Fowler ney.”

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

wanted him. get an like he his brother

A. wanted Sounded attorney.

H* not, understanding, “Q. your it that It was an attor- in this case wanted * * * through ? ney brother under- to no one. didn’t A. Yes but it was We attorney ask an he did not stand that interrogation, time, at the because him, he made Captain advised when Glover defendant very if the clear that time interrogation stopped and wanted lawyer present, have he could so wanted the lawyer.” P.M., Briscoe, an at- Leonard approximately 4:20 At speak to Fow- torney, room at the arrived attorney Allen, Milton had sent ler. He been Baltimore, defen- to interview an office in downtown by a about the case had contacted dant. Mr. Allen been family. testified that Mr. Briscoe member of Fowler’s Captain Glover left with the defendant. to be alone asked request acknowledged hearing the and Detective DiCarlo they Bosak, Siford, Folio testified while Officers request. such a never heard alleged in the there some officers were

Briscoe “every- Captain maintained that at all times. Glover room exception of the defendant and room with the one left the thought that he Bosak testified Glover Detective counsel.” all of the officers were room because in the remained fifteen feet from area of the room about one huddled approximately The room was and Briscoe. defendant by12 20 feet.

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

“A. I I went over the door. exactly

don’t know what the other officers did. I think went some of them have outside. I don’t know.

Q. Where was the door in relation to Mr. Fow-

ler? guess A. I away.” about five or six feet Siford, Detective Folio testified Bosak Glover all along- stood the door while he and DiCarlo stood side the door. reported

Briscoe proximity that because of the appellant officers he did not ask He about the case. took background Fowler, down some information and told “Re- you any member don’t have to make statement.” He main- tains suspect that he was unaware that Fowler was the Keller homicide at the time of this interview. Bris- asking coe admits Glover whether had advised Glover rights. Fowler of his Miranda responded affirma- Glover tively agreement. and Fowler nodded in po-

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

After attorney he left Briscoe returned to Milton Allen’s office and informed him of what had tran- spired. Captain Allen then called Glover. Allen testified stop questioning got that he told him to Fowler until he agreed there and that to this. Glover Glover denies re- ceiving such call.

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

“After the above and rights thoroughly me, I, explained B. William Fowler, an at- wish to talk to the without torney present my this wish is own free promises.” volition without threats or signed Fowler He then this waiver at about 6:10 P.M. talked to crime until P.M. From the officers about the 6:40 writing. 6:40 to 8:30 P.M. his statement was reduced to why Captain On asked cross-examination Glover was first not the defendant was waiver was executed when brought room at P.M. into the 3:45

“Q. why Having been advised of particular a at that waiver taken

wasn’t time? Why

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

dicate Q. time, particular he indi- At this 3:45 P.M. give ? a statement

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

Q. ? did he indicate What time Mr. Bris- spoke A. to us until such He as coe arrived.” left, Captain testimony is that when Briscoe

Fowlers’ Bo- him alone with Detective to leave Glover threatened Sergeant would beat told him Bosak sak that Siford alleges requested He then him until he confessed. attorney was de- permission Milton Allen which call to signed “sick finally he was nied. the statement because He Captain said that being pressed” because Glover up in come court. wouldn’t record, its de- Upon court make the trial had to this be ad- whether the confession should termination as to 103 judge de- mitted trial noted that into evidence. The attorney talk fendant was told not to never police request directly to the and that he never made police judge posed The trial to himself the counsel. analytical question: request emanate “Should (A) counsel; (B) from the I defendant want refuse my present?” talk until is counsel His conclusion was to allow the confession into evidence. legal issue before us is clear: Was the confession voluntarily given? Any

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

(1) person interrogated right has the to re-

main silent. (2) Any which he statement makes can be used

against him. (3) right He a has to consult with counsel and present during interroga-

to have counsel tion.

(4) provide The State will him with counsel if attorney.

he afford cannot an willing If, light safeguards, suspect is still of a these good indica- police, to a this is a make statement to the prod- freely and not the tion that made the statement was atmosphere. uct of a coercive perfunc- a mere opinion The Miranda clear that makes enough tory reading safeguards to as- of the four is has the confession. The State sure the voluntariness of intelligently suspect and the burden to show that rights. knowingly Thus the ob- constitutional waived his game equated a taining to is not to be of the confession suspect. Justice War- police and the Chief between the Miranda, ren, majority opinion in author of the difficult to make it more well aware the decision would confessions, important that more concluded obtain but by following procedures. these served values would be mind, attempt background must to as- we With voluntary to make a defendant chose certain whether the days of police after six confession to the silent, though could remain that he even he knew him, against might and that he used be what he said lawyer present. con- Our have a could consult with and wise, tactically his choice was cern is not with whether understanding of his a full made with whether it was but rights. testimony in record to conclude

There sufficient is his Mi- advise Fowler of police did read and However, interrogation. it is rights prior to each randa rights fully to have to the defendant of little avail fact, they It him, if, are denied him. also explained voluntary quality his actions goes of to the heart atmosphere under such an if a exercised in is defendant, convey intention- to the such conditions as wrong impression a unintentionally, as what ally or of the core specific right consist of. This strikes intelligent subsequently an waiver make whether can knowledge only formed right regarding which frustrating exposure it. In the an from abortive instant, intertwining the defen- abuse we find case Amendments the Fifth Sixth under dant’s 105 safeguards the United States Constitution. One provided Amendment accused under the Sixth right at critical to the effective assistance of counsel all Illinois, stages proceedings. Escobedo v. criminal fully (1964). 378 U. 478 It is clear that in order to S. also self-incrimination, implement privileges against one’s Miranda, required suspect in Court to allow attorney present to consult with an have one dur- and to ing interrogation. App. State, See Duckett v. Md.

(1968). Briscoe, testimony attorney The Fowler, and four of the five officers is that there were during least ac- some officers the room at all times attorney. cused’s interview with his The officers were anywhere away from five to feet fifteen from Fowler and by twenty Briscoe in a room which was twelve feet. We do not type think this is the of consultation with coun- sel which Escobedo and Miranda Miranda envisioned. The opinion emphasizes psychological it is the effect police-dominated atmosphere which tends have upon suspect coercive effect the free will of and forces privilege against him to surrender his self-incrimination. presence The mere police- of the officers continued the atmosphere dominated suspect which the had found himself days. presence may for the last six Their mere have inquiring intimidated Fowler from of Briscoe about revealing extent of Miranda or from to his may counsel subject. abuses to which he have been We also note that Briscoe told the defendant not to re- anything veal might about the case because the officers However, overhear it. Briscoe was not even aware at that time that suspect. the man awas murder Had he been private, able to may consult have found this out perhaps may would not left have Fowler alone. He have advised him as to other matters vital his defense. speculative, While upon be the burden is not defendant to demonstrate what happened would have had he been accorded his to consult with counsel. dissenting opinion emphasizes po- the fact that the

n attorney present,

lice in the in- officers while Briscoe was terrogation accused, could not overhear room with the the and conversation Briscoe and the accused between implies safeguard provided all that the the circumstances necessary to at- assure effective communication between torney point, and client. This rationalization misses the question police that it is not the of whether the officers could and the overhear the conversation between Briscoe accused, presence but the officers rather whether of the gave impression created to and the accused or Briscoe being pre- that and thus their conversation was monitored vented effective communication between the accused and Miranda. counsel, Escobedo by contemplated as Judge Writing Special Appeals, of Chief for the Court Murphy an accused under- stated: do not hold that “We going interrogation is denied the effective as- custodial every police is officer sistance of counsel in case where attorney-client present of the consultation. in the area questioned right being person to consult with The subjected attorney may, course, to reasonable an be dissenting security App. safeguards,” at The 6 Md. 672. justification opinion security for the as the offers reasons doorway presence of the interro- officers in gation opinion further room in the room itself. or thought ac- that proposes have that officers suggests that might attempt commit suicide cused to re- by had been the fact that this is indicated accused clothing. latter quired view this of his We to remove most pro- nothing custodial precaution than routine more as operation place of cedure, in a a standard as it is almost remove require person incarcerated detention to heavy In belt, even shoelaces. suspenders, necktie and assumption, gratuitous not war- is a the case bar record, infer facts contained from the ranted room remained in the officers security reasons. Fowler, a few case, the fact posture of the

In this right with to consult signed a of his waiver hours later acquaintance meaningful. only hardly His counsel is

107 experience right this at which time with interview inquisitors. he was surrounded Thus he could not fully right have understood the which Rock he waived. State, Stale, v. App. (1969), v. 5 Md. Md. and Hale App. Thus, (1968). right this effec- denial of his counsel, guaranteed tive consultation him under Amendment, may the Sixth well have resulted an er- judgment part regarding roneous on his the nature of quality to counsel. This turn affects executing his volition in the waiver of his under the Fifth Amendment. intent, purpose

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

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

stress that wanted an requiring emphatic part demand on Miranda accused. sum, setting confes-

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

Judgment Court of judg- Appeals, reversing remanding ments below and trial, case new affirmed. Appellant pay costs. J., dissenting: Barnes, majority (1) to me that

I is clear dissent because Special Appeals) has (as did the Court of of this Court regard to the facts in its evaluation substituted of the trial for that voluntary of the confession character supported findings amply jury whose were court and the set record; (2) upon forth by even the “facts” the holdings Supreme majority Court opinion, of the the the Arizona, 884 U. S. in Miranda v. of the United States Esco- (1966) and in 436, 1602, 694 16 L.Ed.2d 86 Ct. S. 478, 1758, 12 L.Ed.2d Illinois, 84 S. Ct. S. bedo v. 378 U. majority holding require the the in (1964) 977 do majority opinion of this Court (3) of the opinion; the Special Appeals) opinion of has (as of the Court did the hold- of the extension and unwise made an unwarranted likely re- most ings Escobedo which will Miranda and in injury public the enforcement in in substantial sult holding State; (4) in in this law of criminal Miller contrary in to our majority opinion is decision 362, (1968). State, 247 A. 2d 530 251 Md. v.

(1) my analysis testimony In view fact of in record in case a this indicates rather different fac- picture appearing majority opin- tual than one ion, beginning, it is wise to set forth at the I un- what appellate derstand be the tests for consideration of they facts in the trial after court have been evaluated by court, suppress found the trial on a motion to a con- involuntary, jury, fession as of the trial on the issue merits. Miller, supra—a post decision—Judge In Miranda Mar- bury, Court, scope for the appellate set out the of review as follows:

“The determination of whether a confession is ordinarily admissible is a matter for the trial court to decide and its determination will not be appeal disturbed on there unless is a clear abuse State, 462, of discretion. Abbott v. 231 Md. Bryant State, 531,

A. 2d 797. v. 229 Md. 185 A. 190; State, supra.”

2d Harris v. (251 381, 540.) Md. at 247 A. 2d at Judge Murphy, Special Chief for the Court Appeals, in a unanimous decision of that Court v. Robinson State, App. (1968) 3 Md. 240 A. 2d 638 had antici- pated regard Miller, and, our decision in this after applicable cases, careful review of the Federal stated: well “It is settled that in order confes- against sion to be admissible into evidence accused, prove the State must that it was volun- tary product force, threats, and not the prom- inducements. v. State, ises or Abbott 231 Md.

462; Cooper State, 1 App. v. Md. 190. Other- stated, voluntary, a wise to be statement can- by any ‘extracted not be sort or threats vio- by any lence, nor implied obtained direct or promises, slight, nor however the exertion of any improper Malloy Hogan, influence/ v.

110 7;1, Lyter State, App. 2 Md.

U. S. v. 654. In post-Miranda trials, where the State seeks to in- troduce a statement taken from an accused dur- ing interrogation, must, part custodial as of voluntariness, affirmatively proof of its show warnings given required all to be prior accused that case to such interro- State, gation given, Robinson v. 1 were so Md. accused, 522, giving App. and that statement, knowingly understood his and Johnny intelligently them, Mack waived State, Md.App. 3 stan- Brown v. 313. The basic admissibility governing the of an extra- dard whether, considering judicial statement is circumstances, totality the statement was Tay- Texas, 707; voluntary. 386 U. Clewis v. S. State, 424; State, v. Md. McFadden lor v. 238 frame- Md.App. 511. Within this constitutional 1 work, question of a confession whether ordinarily a in evidence is admitted should be and its de- court to decide for the trial matter appeal un- not be disturbed termination will a abuse discretion. Cun- clear of there less State, 404; Carrington v. 247 Md. ningham v. State, Md.App. 1 353. 641.) 670-71, Md.App. A. 2d at

(3 Warden, case, Md.App. Dennis v. In rather recent Judge Orth, of (1969), for the Court A. 2d 909 applicable as law aptly Appeals, summarized Special follows: petitioner] post has conviction

“Dennis [the hearings at which he full and fair received now test for voluntariness substantive invoked is- on the presented evidence his statements general deter- rule is that sue. While left admissibility of a confession mination court, dis- will not be largely trial to the dis- is a manifest abuse there unless turbed 111 cretion, State, 190, Cooper Md.App. v. 1 228 A. duty

2d 840 our review to examine the independent entire record make deter- of mination of the ultimate issue voluntariness. Carolina, supra,

Davis North 384 v. U. S. at 741- 742, 1761, S. 16 As Ct. L.Ed.2d 895. is al- invariably involving most inso cases confessions through police interroga- obtained unobserved tion, testimony a there is conflict here in the as surrounding interrogations. to the events the facts; weight But a we are not finder of the to given be credibility the evidence and of wit- nesses are matters Gibson v. for the lower court.

State, 222, Md.App. 242 A. 204.” 2d (6 315, 920.) Md.App. 251 A. 2d at applied present case, As approach the to the of this appeal Court on to facts must be resolve all of the conflicts in the and all evidence reasonable inferences findings from the evidence in favor of the trial jury only court and of the to reverse the trial court admissibility upon the of a confession where a there is showing of “a clear (Emphasis sup- abuse of discretion.” Miller, plied.) supra. appeal, totality On of circum- considered, stances is be fragments not some isolated conflicting possibly by witness, a evidence either for prosecution or for accused. legal framework, record, In this as I have read and analyzed it, following reflects the facts: Keller, raped

Linda girl, C. murdered was a year aide, seventeen old often nurse’s referred to aas “pinky,” Hospital at the Church Home and in Baltimore City. 1966, she On November had lunch with a student DiSisco, nurse, hospital’s Donna second floor cafe- She left alone 11:40 A.M. to teria. return to her du- floor, on the fifth but she never ties reached her destina- security report A was sent to the tion. division that a missing assigned from the work “pinky” to her. security guard part-time hospital,

A at the shortly be- P.M., girl, pushed open fore a 4:15 in his search for the ajar partially hospital. room the He door the boiler condition, heard moans and found the victim in nude dusty body her her all He went head bloodied and over. Room, Emergency help carried victim was first Dr. Jose Ortez for there where she was treated multiple stab wounds. George Wells, Jr., P.M., day at 10:50 Dr.

On the same gynecologist employed Department of Bal- the Police City, He a fresh tear examined the victim. found timore vaginal opening from the the and concluded at bottom findings vagina forcefully pene- been that the had something shortly by prior to examination. trated the 11, 1966, at 11:16 P.M. died on November The victim Rudiger body by Dr. Breitnecker Her was examined following day, Examiner on the the of Medical Office the disclosed severe frac- 12. The examination November by narrow, skull, made ture to the and 28 stab wounds Eight in sharp were the the stab wounds instrument. lungs chest, and penetrated the two entered two victim’s having entry hole of one-fourth heart—one wound the width, one-eighth of an of an the other about inch sharp to make instrument was used in width. One inch that the vic- Dr. Breitnecker concluded all of the wounds. injuries head with caused “severe tim’s death was and, addition, mul- and brain contusions skull fractures abdomen, injury tiple of the chest and with wounds stab lungs the to the intestines.” heart against principal the evidence of State as the Inasmuch Bobby Fowler, defendant, a confession was William 30, 1967, the March trial court from him on obtained testimony presence jury out of the of the heard extensive defendant) having (a jury been elected trial as evidence confession was admissible ruled that voluntarily given no denial of de- having with been rights. produced on The evidence constitutional fendant’s admissibility of the confes- preliminary issue ruling, sion, trial was supports the court’s substan- which tially follows: as

Detective Vincent DiCarlo went house of the approximately 25, defendant at 11:00 A.M. on March investigation entirely in connection with the of an charge unrelated present to the ones in the involved case. The defendant invited Detective DiCarlo to come in and beer, declined, offered him a which Detective DiCarlo re- marking permitted duty. that he drink while on He then confronted the defendant fact recently purchased clothing defendant had some awith money endorsing stolen order. The defendant admitted document, saying game. crap that he in a had won it voluntarily clothing He showed Detective DiCarlo purchased. Thereafter, had the defendant was taken to the Northeastern Police Station and booked there at about 11:15A.M.

Sergeant Charles Siford testified that he advised the of his defendant constitutional as follows: right “I advised him of his absolute to remain Also, anything silent. he said would be used against him in Court. Advised him there would promises be no threats or no made to him. Al- so, lawyer, he had a to have a if he lawyer, couldn’t afford a appointed one would be during for him any interrogation and that if he expressed lawyer present, the desire to have a interrogation that all would until a cease law- yer was made available and if one wasn’t made available, interroga- there would be no more tion.” — interrogation

This occurred at about 4:30 P.M. The charges not concerned with the in the instant case—con- given tinued until 5:30 P.M. After the defendant was evening meal, interrogation began again the at 7:30 and Again, lasted until 9:30 P.M. the defendant was advised rights. of his Miranda 26, following day, March

On the the defendant talked during to from A.M. to A.M. his wife 8:50 9:08 the morning by brother, Leroy, was visited who talked given

himto from 9:40 to 9:52 A.M. The defendant was During evening by all of his meals. he was visited another brother. 27, polygraph took a At

On March the defendant test. Squad ques- to 2:55 P.M. he was taken the Homicide case), tioning (presumably in connection with the Keller given warnings, interrogated the Miranda and was was During evening for “four or five minutes.” he was regard line-up placed offense. in to unrelated by defendant was visited his mother On March lunch, Following he taken to the Bu- and his sister. was hearing preliminary then to a Identification and reau of charge. magistrate on an unrelated This hear- before ing then taken to postponed and the defendant was questioning regard Squad for further the Homicide way case, at the de- stopping on the there Keller and his a visit with his wife newborn home for fendant’s Sergeant on cross-exami- was asked Siford child. When your part?”, “an act of kindness if this was nation necessarily . indicated the answered, “No, so. .He he way. go practically We had to It wasn’t out desire. year, during the he recalled that He also place.” again home. He was his mother’s an accused had taken warnings. At short given Miranda gave police no Squad, Homicide Bosak, present at that who was Detective information. on cross-examination: interrogation stated interrogation about? “Q. this What to the Pinkie case but reference It was A. whatsoever out information get couldn’t we Fowler. Mr. you ? talk Q. want He didn’t No. A. you?

Q. He told anything about it. know didn’t He said A. Kel- in this so-called any implication Q. Denied point? case ler Yes.”

A. made following day, 29, defendant two March the The interrogated again telephone calls to mother and was by Sergeant with offenses unrelated Siford in connection given Again, present to defendant was the case. day warnings. Miranda Later that the defendant was given magistrate preliminary hearing a on before charge, an unrelated was held for the action Grand Jury City placed in and was thereafter the Baltimore Jail.

During period through from this entire March 29, custody March been in the defendant had only Northeastern District. The defendant had been in- terrogated Sergeant Siford, separate by on four occasions solely charges present on At unrelated to the case. no time any upon force or violence used the defendant nor were threats or held him. inducements out to majority opinion, opinion In the as of the Court Special Appeals, “litany” of giving there is a with the warnings by the Miranda “versicle,” as the “response” being with the that record silent as response warnings. Fowler’s apparently to those This is suggest might intended the defendant did not or warnings, not understand the Miranda but as will later be pointed out will record show he did indeed under- stand them. reason no formal written waiver was easily explained by Captain taken at these times was An- Glover, ton T. on cross-examination when he was asked regard warnings prior to the Miranda confes- “Q. Having rights, why sion. advised been wasn’t particular a waiver taken Cap- at that time?” to which replied: Why tain “A. Glover should we take ? waiver give He didn’t indicate he wanted to statement.” day gave On March the defendant the confes- sion, transferred from the Baltimore City interrogation Jail the Central Police Station for upon signed Judge Grady a writ 30 at March about :Q03 P.M. The defendant approximately arrived there at P.M., 3:45 Captain was undertaken Sergeant presence Glover in the Siford and Detectives Bosak, Captain and Folio. advised the de- DiCarlo Glover During Miranda rights. part of the first the fendant of his interrogation, knowing defendant the admitted the victim having hospital day the the of com- worked at on the crimes, he committed mission of the but denied that had approximately them. At 4:20 P.M.1 was Briscoe, interrupted of an attor- the arrival Leonard ap- ney. importance majority opinion In view of the give pears supposed denial “the effective assis- of to background counsel,” of rather full account of tance of con- appearance and course and course of Mr. Briscoe’s given. duct should be

Many undisputed. Mr. Bris- facts are relevant near those at coe has his law offices One Charles Center Maryland Allen, Bar member of the Milton another practice specialized in criminal law some who has years. attorneys Mr. Bris- friends and are close two aspects of frequently Mr. Allen with certain coe assists interviewing including of clients practice his criminal the defendant penal Relatives of confined in institutions. regard rep- Allen in to with Mr. had communicated agreed represent He had the defendant. resentation of retaining bring in his fee relatives were him and the Saturday. Mr. Briscoe following Mr. Allen asked clients, and one two March 30 to interview agreed do this and Wesley Harris. Mr. Briscoe William the de- to interview Police Station went to the Central P.M., at the arrived 4:20 Mr. Briscoe At fendant. about being interrogated and defendant in which the room Captain there. inquired Fowler was if the defendant Glover testified: approximately Mr. Leonard

“. 4:20 P.M. . .at came Briscoe, Milton Allen of Mr. associate requested Mr. to his client. We took talk erroneously part testimony Captain of his Glover in the first 1. began at 4:35 P.M. and ended interview the Briscoe stated 5:30 times, i.e., gave testimony he the correct P.M. in his Later began ended at 4:35 P.M. These correct at 4:20 P.M. and interview times testimony by the Detec- were for the interview confirmed Bosak. tive defendant, told the the room. We into Briscoe Allen, he if Mr. Fowler, represented Briscoe Mr. * * * We he He said did. to him. wished to talk talking himto were what we told Mr. Briscoe representa- as a there about. He stated knew me if I Allen. He asked tive of Mr. *** He rights. I him did. I told Defendant’s to make sure order advised. In had so been repeated I properly, was understood together. Defendant and the to Mr. Briscoe * * * the he Mr. understood I told Briscoe the rights Defendant, which were , . . if remain silent. Defendant had counsel, be counsel ob- he afford would could not used he said be tained for him. What would * * * against if he de- told that him. He was us, counsel cided could to talk he have present.” gave got up and Mr. Folio testified that he

Detective Mr. in he had been seated. Bris- Briscoe the chair which room, in one corner of coe the defendant were size, x 12 while the estimated to be some feet feet officers of the room near door. moved to other side door, just some outside the were Some the officers were testimony regard inside the near door. room space and Mr. estimated between other, Briscoe, hand, on the one officers importantly, how- varied 8 feet feet. Most from 6 to to 15 ever, they not hear what could officers testified saying to each other. Mr. Briscoe and the defendant were Detective Bosak testified: saying. I

“I hear he was couldn’t what large room other end of room. It’s a end, talking and he was over the other with his area. Mr. client. . . were all huddled in one .We Fow- Mr. Briscoe was himself with huddled ler.”

“Q. they hear were You were able to what No, saying? A. Sir.

“Q. you Were the other officers with on the other side of that room? A. Yes.” On cross-examination, Detective Bosak stated:

“Q. your I testimony believe it is did there come client, time Mr. Briscoe and his Mr. up Fowler ended the corner A. of the room? sir, away Yes we moved from him.

“Q. When did this come about? Did not Mr. Briscoe ask to be alone with his client? A. No got sir. up, away. moved [I] “Q. Why you away? Courtesy did move A. Mr. Briscoe and his client.

“Q. do, Captain up, What did stand Glover walk to the other side of the room? A. Mr. After introduced, Fowler and Mr. Briscoe were sat down. Mr. Fowler was advised of his had. He talked to him and moved to we the other side of the room.

“Q. automatically Just moved to the other side sir, of the room? A. Yes walked.” Sergeant Charles Siford also testified that Mr. Briscoe never Sergeant asked to be left alone with his client. Si- ford moved from the chair where he was seated. He was asked on cross-examination:

“Q. Why you A. moved? the reason Well moved, I talking client, Mr. Briscoe started to his him, more or closer less to and I couldn’t under- saying. got stand up my what he I was from chair, walked toward the door. stayed] [He maybe away doorway.” a foot from the gave Detective Folio testified that when he his chair door, to Mr. Briscoe he walked to the where he could any hear of the conversation between Mr. Briscoe and the defendant.

It is clear (to from the record be considered in en- its tirety appeal, Warden, supra.) Dennis v. po- that the security risk to be a lice officers considered open room they kept door of the and for this reason evidently They believed in readiness. and themselves escape, try to might try or commit suicide defendant to using as a Mr. Briscoe using in the room or the window Captain testified: “shield.” Glover cloth- deprived most of his

“Fowler had been pants or ing exception trousers of his with the preceding this.” activities because of his Captain testified: cross-examination Glover On ajar, “Q. you say you the door left When Open mean, A. you open ? left the door what do to leave. he wanted case Defendant decided get in.” position to back to We wanted be having Mr. purpose one Mr. Allen testified that a retain- to obtain the defendant was Briscoe interview (the hospital) was ing employer fee. The defendant’s get holding Mr. Briscoe was pay for him and check Allen signed for Mr. to ob- authorization the defendant’s pre- was pay The written authorization tain the check. pared given the de- Mr. Briscoe execution Fowler, re- defendant, in this testified fendant. which, gard piece paper me the Mr. Briscoe “showed sign my know, they asking I you me did want up my pick everything he could so check over to him my agreeing check, it, signed he could name and I read fee, up my pay lawyer.” pick for a check obtaining the in addition to Mr. Briscoe testified that personal the defen- data from authorization and other dant, you “I ‘Remember don’t have told him [Fowler] attempt him in I to see make and would statement’ Jail, City whereupon I be- morning Baltimore my gan me for card as of the officers asked to leave. One gave testi- leaving I Mr. Briscoe’s I it to him.” Captain mony said that when Glover also reveals had been advised presence the defendant affirmatively. rights, The defem “nodded” the defendant nod motivated trial that this dant testified satisfy [Captain “just Glover] him fear and intended to Sergeant regard departure to the testified Siford Mr. Briscoe as follows: (Briscoe) a de- Did he indicate

“The Court: in the room while continued sire to remain go ? forward should everybody. surprised “The No. That Witness: Mr. Briscoe said he had other business. State) (By

“Q. for the Was Counsel he-.asked to remain ? to remain or invited going granted he to re- “A. I took for represented more or him. I was less main if he go really. he had to Believe he said stunned City Jail.”

Captain testified: Glover rémain. if he wished to

“. . .1 asked Mr. Briscoe response “Q. A. Mr. to that? was his What go City and talk had to Jail Briscoe stated he to another client.” interrogation was P.M. and the Mr.'Briscoe left at 4:35 eating interrupted by the defendant It was

resumed. hot meal. It was 6:00 P.M. then continued until about a few minutes to said he wanted when saying prayer, he indicated he wanted After meditate. to talk alone to except Sergeant officers, All of the Siford. Sergeant Siford, left the room and asked then Siford defen- to tell him. The it was he wanted defendant what dant stated where Pinky. asked killed the Siford that he had Home and said at Church and the defendant . Captain. Sergeant Hospital. asked Siford Then Glover repeated what into the room and the defendant come Sergeant then came The other officers had told Siford. into the room. given a waiver form then written

The defendant was sign. upon, read, a letter-size The form fill in

121 piece paper and contains four to be blanks filled in. It reads as follows: William,

“I, Fowler, B. 30, Sr. on March 196‘7 my right have been advised of silent, to remain any questions not to answer without first talk- ing attorney, lawyer. to an I have further been advised that if I have no means which to attorney, police, arrange obtain an must for lawyer if one, me I wish to talk to before I any questions. answer I have also been advised any questions if I choose to answer before talking lawyer, say to a whatever I can be used against me in a Court of law. reading having my rights “After the above and

thoroughly explained I,me William B. Fow- police ler, Sr. wish to talk to the without an at- torney present my and this wish is of own free any promises volition, without threats or way. “ (Signed) Fowler, WilliamB. Sr. City Street, North Castle

92/ p.m. 6:10 3/3/67 Time Date “Witnesses:

(s) Captain Anton I. Glover

(s) Sgt. Chas. F. Siford

(s) Det. Richard F. Bosak” portions completed The italicized form are all handwriting appears in the of the defendant. It to me signature sophisticated that the of the defendant is a one handwriting and his indicates that the defendant is a person of someformal education.2 signing “boiler-plate”

After waiver, form of as Appeals United States Court of for the Fourth Circuit has referred Hall, to similar forms—see United v. States 2. The completed defendant stated to Mr. Briscoe he of had grade public system Baleigh, the eleventh in the school North Carolina. statement, itself, 1968)—the (4 841, F. 2d Cir. advising begins yet

given by defendant, another rights. as of his full follows: statement “ Fowler, twenty- Bobby tatement of William [S] Street, years, taken 924 North three Castle room, floor, third build- Fayette ing, way on March Falls Street Interrogated 1967; by Captain p.m. Anton 6:40 Glover, Sergeant presence Si- in the Charles DiCarlo, Joseph ford, Vincent Officer Officer Folio, Detective Rich- District and Northeastern say any- you ‘Now before ard Bosak. William you thing you I have to advise wish silent, you right have an- to do not to remain being to questions without first able swer you a your lawyer. afford talk If cannot with you get arrangement lawyer to make we will lawyer, anything you say a also that you against will a of law. There be used in court you in order promises or made to be no threats get you it must be to make this statement to you your voluntary part do under- and on free you just you and are I have said to stand what willing the assault still to talk with us about Bobby you “Pinky?” Now were Yes Sir. Bris- a a Mr. Leonard A. visited little earlier coe, Attorney Mr. Milton with Law associated you rep- you that will be Allen he informed and you knowing still this are Mr. Allen resented willing us about the assault to talk with being Bobby ad- “Pinky?” after Yes Now Sir. silent, your your remain to vised attorney your right to the use of the and to an say may knowing you what be used telephone and give ready aus statement in court are you concerning homicide? Yes Sir. the assault and you Bobby about Now we wish talk stabbing which occurred at Assault 6, Hospital on November Church Home 12B Keller, w/f, years age where one Linda of 6821 Roberts Ave. found as assaulted hospital stabbed in the rear room of boiler 11, 1966, and later died on November as a result injury. Bobby you of her Linda do know how injuries Keller received the which resulted Bobby your her death? Yes. Now words own exactly tell happened hospital what at the 6th of I November 1966. said before from the As time I that went to work until before sometime lunch, during Lab, trip a this occurred to the carrying I specimen which was to the Lab. As I Emergency come out of the Room en- the side going trance I a white elevator “C” noticed Pinky going female uniform into the room, her, boiler she didn’t me so I see followed go back, right by I way stopped didn’t all I leading the first From door boiler room. to the standing peeping there I around saw Pinky go just right, into the on the I first room stood there for then about another minute and I went to the I back Lab. came from the Lab emergency stayed went back into the room about maybe just enough three to five minutes to be following seen and I then went back into the place tipped which is the room I back boiler as to the first room I there noticed that she was not again room, so I took steps a to the few second peeping me, in I don’t know if she I seen taking stocking belt, noticed she that was off her I tipped then back to the first room I for waited eight minutes, thinking myself about to ten to waiting that she was on some one no one but tip- had So I came. come of the room not out ping my this time but in normal walk and went standing to the door before me was female nude, she have her didn’t on she she clothes was doing replied asked me I what was back there I doing especially back “what was she back there say anything she else in the didn’t nude?” she me, just get by I door to pushed tried to her, me, pushed pushed slightly I she pushed she push again, push one hard me from to this lead thing that shove to another shove. The next hard laying I floor and was her on the remember blood, got something and I a rush I left like get paper we came back I went to brown Mulligan put re- to I I Mrs. use clothes in think put that. I and her clothes members went back bag. cloth into the I her dust used dress things clean, wipe brought I the clothes out locker, bag put my into carried work, disposed my I went normal back bag got I left the when I off from work. go bag through entrance, I in the side didn’t Employ- I clinic. left out entrance near the Office, go in I ees the doctors and walked where bag Fayette across Street with the where parked just walked Shell has all the cars Station path way Proj- can to the first trash in the bag, ects I I walked that where throwed the just over it in like I had trash. Then and threw you my Bobby I do went to house. Now mothers Pinky you I recall what with? used stab my anything I didn’t me did have have but key one small knife with me on the chain the City you Do remember over the Jail. Pinky you left where the when the room? was Laying floor, back, flat on the on her she bleeding. you she was How do know she very just you bleeding? It like wasn’t much yourself parts would of her cut different body. you yourself? just

“Do recall blood on Yes my uniform, sprinkles on I like had blood on Bobby me and didn’t make to much difference. it carry you opening I it do remember the knife? my chain, open key all time I remember the on my hand I had I into room that when went the Bobby pur- my anyway. pocket what was going pose room back into the where Pinky if she was ? I her to see followed back you anybody had How often seen with else. you I

Pinky know her? before time did time, I her, didn’t it the first know was about recognizing recall her. don’t eight you group Bobby a

“Now I will show groups of photographs different nurse with Pinky you recognize hospital personnel see if you talking photo- one a are about? Yes this Pinky graph uniform. of Linda Keller in her Bobby you room and the referred to the first you can describe second room in the boiler room they for me? I know what are used them don’t right going in and the first on the but one coming the left out this one had it would be room cardboard boxes. was in second What you Pinky? a where met the It was bench down, getting ready bag she of ce- to set bench, top I ment think two were you left the room corner. When Pinky you doing any- laying did there remember thing? you pulled I the door shut. time did What day Bobby? got leave I off work on 3:15 and put my I the clothes in the trash went to Pinky’s mothers. Where were the clothes when you They neatly the room? laid went into were Bobby you on the bench in room. remem- do doing anything ber with the knife that was pushed I used? Yes took the knife and I it in get wiped blood off and I the dirt it with handkerchief, bloody I don’t think was but Bobby you I make sure. wanted to are certain weapon that this is the was used? sir Yes I I don’t used it number times know how many it was. you anything Bobby?

“Did take from her No sir I didn’t. What were the clothes like when you off, they ? I saw them As said were the bras shoes, was white and inwas her were shoes you stockings. white and were her Do so recall light. any- the color ? of her hair It Is there thing you else that can us tell about assault stabbing hospital and at the ? No sir that about Bobby all. you after Now have read this state- consisting typewritten pages ment of three you you find it to be truth as have stated you willing sign Bobby you are it? sir. Yes given voluntary have this statement free and promises you threats or out also right you have been advised that had the to re- your lawyer main and the have silent you willing present knowing and still this are sign sign statement? I will it. Yes sir p.m. Witnesses—Captain An- 8:15 Terminated Glover, Sergeant Siford, ton F. Of- T. Charles Folio, Sr., Di- Joseph Vincent ficer C. Officer J. Bosak, Signed Carlo, F. Detective Richard Wil- Street, Fowler, Jr., liam 924 North Castle B. —, p.m. March Md. Time 8:30 Baltimore ” 30,1967.’ signed by the defendant This written statement was pages of the statement. who also initialed the reading statement and the tes- A close of the written many timony of the same defendant reveals expression used defendant modes of words and indicating statement, testimony appear also in the substantially verbatim taken down that the statement was given by as the defendant. after on merits indicates that the trial

The record of Sergeant taken, Bosak Detective the statement Home and Hos- to the Church Siford drove P.M., they way hospital, at to the 9:30 pital. While on the North home on Castle Street. stopped at defendant’s Fowler, wife, came out to the Mrs. Della The defendant’s seat, car, put faced her husband on the back him have head in her hands and asked in effect “What they got you “up hos- in for.” The defendant said you Bobby?” pital.” Mrs. Fowler do mean said “What girl hospital,” I He “I told them killed the at the stated: screaming at which Mrs. Fowler started and the defen- you crying. repeated dant started Mrs. Fowler do “What mean?” and the turned to Detective Bosak and defendant said, Bosak, you “Detective tell her.” Detective Bosak did Sergeant so and Mrs. Fowler continued to scream. Siford testified that he heard the he defendant tell wife that girl hospital, killed the at and the rest of the account given by Detective Bosak. Both Mrs. de- Fowler and the episode except they fendant confirm substance of this stated that the defendant never made the statement wife, but the statement was made Detective Bosak. signed The defendant also stated he had the state- ment had he returned from the Church Home and after Hospital “if I am not mistaken.” The visit to the Church however, Home Hospital, and occurred after the visit to just the defendant’s home described.

After home, the visit to the defendant’s car occupants, proceeded with its to the Church Home and Hospital through where the defendant went the rooms where the crimes were pointed committed and out how changed conditions had since the commission of those Sergeant crimes. Siford testified: “He said in his own place words that up, had been cleaned showed aus bags something bench where some or had been at the they removed, time said, but had been since . then. . something He elevator, showed us about the SC’ ex some planation when he went around to the elevator.”

The defendant confirmed the account of the officers regard to the Hospital Church Home and visit. He stated on cross-examination: “Q. you go Did into the room body where the * * *

was found!

“A. I think I did. Not for I sure. think I did.

“Q. ? else went into the room Who “A. All of us in the room.” testimony taken on the merits was: Other relevant prior 1. criminal rec- The defendant had substantial ord of convictions as follows: entering. 7,1958, breaking

a. for and On October May 10,1961, larceny. for b. On breaking entering. May 7,1964, c. and On for entering. 24,1964, breaking July d. On employed 2. he had been The defendant testified that Hospital at the for eleven months Church Home prior two weeks to his arrest. taking a from

3. statement Mr. Briscoe testified that May 30, time of to him defendant his visit following he obtained the information: address, a. His North Castle Street. telephone

b. His number. brother, telephone c. The of his 13 North number Street, Denham EE 2-5982. 14,1943.

d. He in Baltimore on was born December e. He married and had three children. grade public completed f. He had in the the eleventh

. Raleigh, school in North Carolina. following

4. On cross-examination of the defendant testimony appeared:

“Q. Sergeant Siford, you? You liked didn’t Sergeant you “A. Did I like Siford? What of, like, strong speaking very that carries a No, point. I didn’t.

“Q. Sergeant You didn’t like Siford? No,

“A. I didn’t.” Warwick, 5. Mrs. for the Darlene witness defendant formerly employed and at the Home and Church Hos- pital, very patients there were ill testified that when who restraint, required always the defendant “was about

129 always patient restrain the or to restrain he was able patient,” reasonably from which can inferred be strong, type person. the defendant was a robust of majority points conflicts As the out there were certain principally in the defendant and evidence between the police regard alleged beatings in administered officers by slapping Detective Bosak on the face defendant however, pushing defendant, him off a chair. The alleged never communicated this use force to Mr. Bris- requested any or gave appear- coe His face no treatment. any alleged beating. ance of All of the denied the officers any use of force or threats of kind. trial court jury against and later the resolved these conflicts the de- fendant.

There testimony were also some conflicts between Mr. again Briscoe Mr. Allen and the officers but here jury the trial court and later the resolved these conflicts against favor the State. There certainly was most ample support evidence these find- ings.

It kept should be mind also that officers present seasoned, involved in the well-quali- case were highly regarded fied and Captain been, officers. had Glover trial, at the time of City with the Baltimore Police Department years, 20 with the Homicide Division for al- years Captain most 15 and had been of that Division for year. approximately one He had received 3 star com- mendation, stars, several straight Bronze numerous com- mendations and several letters commendation from the Sergeant Police Commissioner. Siford had been on the years force and associated with the Northeastern Dis- years. trict for Folio had Detective been on the force years. Detective DiCarlo had been Police 141/9 Department years and a detective for three months. reading A testimony upon defendant’s both the upon motion and the merits indicates to me that he was by any ignorant, person, but, means slow-witted contrary, intelligent, on the reasonably was educated, well by articulate and no means unfamiliar with the investigation. daresay and their I the methods of trial jury might very court and the well have reached this they same conclusion when and heard the defendant saw testimony. during his lengthy testimony (some

At the the conclusion of pages transcript), the ad- in the the trial court discussed argument visory charge and, of with counsel after coun- correctly sel, gave charge jury, a well considered to the advising jury upon applicable the to confessions the law op- including had an or not the defendant whether portunity of an the to the choice attor- to exercise stated, you ney. part, “if no in find The trial court to Mr. opportunity these were afforded to exercise throughout interrogation, you must not con- the Fowler arriving alleged or confession admission sider your exceptions taken either No were verdict.” charge, advisory trial to the court’s State or defendant asked if there parties replying, when counsel for both any exceptions requests additional instruc- or for were tions, “None on be- of the defense” and “None on behalf jury State,” respectively. the de- The found half of capital punishment, and guilty rape, without fendant punishment. degree, capital without first murder imprison- Judge life sentenced Perrott years imprison- and to 20 the murder conviction ment on conviction, rape the latter to run consecu- ment on murder conviction. tively sentence with the refer- there are at least two majority opinion In the interrogation” reference to days and one to “six ences interrogation.” These statements days of “six continuous interrogation con- give impression rather during days, pointed as is constantly the six but tinued opinion, majority was not out, part, in the do interrogation 25 and had to on March The case. March 25 the On matter. with an unrelated and 7:30 P.M. to 9:30 P.M. P.M. to 5:30 4:30 was from P.M. 3:45 P.M. 1:45 26 it March P.M. On from. telephone to his wife and on the talked defendant and an- his mother later visited one brother given a March 27 the defendant was other brother. On Squad polygraph Homicide and later taken to the test was line-up. questioning placed in a On March 28 he for and sister, lunch, stopped had at his home saw his mother and evening. and called He taken to the his mother was questioning, Squad stopping for further en Homicide route at his see his and home to wife newborn child. On telephone March 29 the defendant made two calls to his given preliminary hearing mother and was on an un- charge. interrogation related On March did not begin P.M., interrupted by until 3:45 was the arrival and Briscoe, resumed, conference with Mr. thereafter being waiver approximately and statement obtained at interrogation long 6:10 P.M. far This is from unin- periods; terrupted indeed the was almost leisurely. my opinion, ample

In there was evidence from which jury they the trial court and the could—as did—find that the defendant was afforded all of his Miranda in- cluding silent, right to be to have counsel and the rest. testimony indicates to me that fully the defendant rights. Miranda place, understood his In the first the rec- intelligent, ord is strong indicates the defendant healthy, years age, ways and versed in the of crime procedures. Secondly, police frequent he inwas touch mother, brothers, with wife and sister. obviously He knew he to have was entitled counsel as telephoned him, his relatives to obtain counsel for they which made Mr, by consulting an effort to do Allen and arranging for representation. actually Mr. Briscoe during arrived interrogation and conferred with me, defendant. To present to have counsel and to confer him, good with indeed that the defendant evidence understood and exer- right to counsel. He cised perfectly understood nature and effect of authorization apply his check knowledge—remem- to a counsel fee and with full July trial, bered and recounted 1967 at the four months explained later—even “pay that “fee” meant the law- also, yer.” my opinion, ample There evidence that opportunity had all reasonable to confer majority Mr. Briscoe. The cases concedes security proper establish that take mea- subject sures and that the to confer with counsel is case, necessary present In the it such measures. was security keep for the door of the reasons the officers to they open, afford the defendant room but were able to — moving privacy to the other Mr. Briscoe sufficient client. The evidence end of the room—to confer with his what was be- is clear that none the officers could hear ing defendant and Mr. Briscoe and there said between the way contrary. no the fault It in is no evidence to the was stay rest police for the of the that Mr. Briscoe did not interrogation. do He was invited this, but, own, an- of his he left to interview for reasons other client. majority opinion states: presence of the continued mere officers

“The atmosphere sus- police-dominated in which the days. pect for the last six had found himself may Fow- presence have intimidated Their mere inquiring of Briscoe about the extent ler from revealing to his or from Miranda his may have to which he been counsel abuses de- subject. told the note Briscoe We also anything the case about reveal fendant not to However, might it. overhear officers because the time that even aware not Briscoe was suspect. able Had he been man a murder was may have found this private, he to consult not have left Fowler would out and perhaps as to other him have advised He alone. may be defense. this While vital to matters upon defen- is not speculative, the burden happened have what would dant to demonstrate to consult accorded had he been counsel.” “speculation.” extraordinary is indeed statement

This pointed out, constantly As has been the defendant was “police-dominated atmosphere.” His sporadic, was not constant. He was in touch with his through arranging wife and relations. He them to choosing. obliga- obtain counsel of no his own There was upon jury tion accept the trial or Mr. court Bris- statement, they apparently coe’s not. did Nor clear to me that Mr. Briscoe that the de- was not aware suspect fendant was murder when he conferred with the defendant. Mr. Allen testified that as result of his conversation with a relative of “I knew suspect Fowler was a in the Pinkie case.” It is in- almost conceivable that Mr. Allen Mr. would have sent Briscoe to interview the defendant and would not have told him charged. with what crimes the defendant But what say does Mr. Briscoe cross-exami- connection? On hearing nation Suppress, on the fol- Motion to lowing occurred:

“Q. you said, generally go you As when Allen, you visit someone for Mr. he what tells they charged are ?with Yes, particular charge.

“A. the “Q. you charged Did he know was mur- rape? der and it,

“A. I couldn’t swear to sure but almost charged Milton me what he told was [Allen] with.” trial court could have from concluded this that

Mr. Briscoe did know the time of the conference what charges against placed had been the defendant. my opinion, ample was from

In there evidence which the trial court could conclude that had met the State its to show burden that the defendant’s confession was vol- untary and that the none of defendant’s Miranda it, majority of violated. As I the had been see Court Special Appeals and the Court of have their substituted evaluation of the that of the trial court on facts the jury the motion and of the on the merits. Under authori- mentioned, already ties this should be done.

(2) my upon in the opinion, In “facts” set forth even the majority opinion, holdings Supreme the of of Court the Miranda, do not re- and Escobedo United States in justify holding majority opinion. in quire or pages of ma- not all of the 52 It clear that must be Miranda, jority in opinion Warren of Mr. Chief Justice large homily, history, policy consisting part of in reaching cases prior the facts in four statements decision, holdings Supreme involved in that are of dicta, interesting which, Much is view Court. Stewart, Clark, White, vigorous Harlan and dissents of JJ., Supreme unlikely applied Court be . future cases. ques- Arizona, 759, the

In Miranda v. No. accused admitted that Miranda tioned two officers who right an at- had not had have been advised torney present. top two At of a obtained confession later, hours that Miranda had made was stated “voluntarily, promises of without or confession threats immunity knowledge legal rights, my un- and with full any against derstanding I used statement make be ap- Supreme was not me.” The held that Miranda Court attorney right prised and to to consult with an his interrogation, during present nor have one compelled effec- not to be to incriminate himself tively protected other manner these and without warnings the are inadmissible. How differ- statements warnings given Miranda ent is case at bar. The were the them, times, the least four or five defendant understood during interrogation and fi- did with counsel consult conscience, nally po- confessed under the demands of lice coercion. York, case, Vignera companion

In v. New there rights warning given steps protect no no taken Ofthe accused. case, S., companion

In there Westover v. U. another warning given interrogation prior was no FBI rights there was no evidence of an articulated waiver of began interrogation. after the FBI its remaining case, Stewart, companion

In v. California there was no evidence was advised of the accused rights Supreme and the held it could not Court presumed be police from a silent record that the had ad rights. vised the accused of his quite apparent present

It is to me that the case differs significantly holdings. from all of the Miranda significantly

The instant differs case also from the hold- ing Supreme again in Escobedo. Court Here Har- lan, White, JJ., Stewart, Clark and In dissented. Esco- bedo, Supreme Court held that the accused was en- titled to the assistance of counsel under the Sixth Amend- States, ment to the Constitution ap- of the United held plicable through process the States the due clause of Amendment, inquiry began the Fourteenth when to focus upon particular suspect accused as a and that the ac- cused right had police been denied this when the denied the accused the attorney consult his retained who present police during interroga- at the station case, present tion. In the police advised the defendant of his Miranda arranged and the defendant through counsel actually his relatives. His counsel con- sulted during with the defendant

was invited to remain but left for reasons quite his own. This is a different case indeed from Escobedo.

Even the dicta in Miranda does not render the confes- present sion in the case inadmissible. Mr. Chief Justice 444-445, Warren stated at 384 U. S. 86 S. Ct.

L.Ed.2d 706-707: holding spelled

“Our will be out with some specificity pages in the which briefly follow but prosecution stated it is this: not use statements, exculpatory whether or inculpatory,

stemming interrogation of de- from custodial pro- fendant use of unless it demonstrates the safeguards privi- cedural effective to secure the lege against By in- custodial self-incrimination. terrogation, questioning mean initiated we person law enforcement officers after a has been deprived custody taken into or otherwise of way. any significant for freedom of action in As safeguards employed, procedural un- to be fully effective are to less other means devised right persons of inform accused their silence opportunity and to assure a continuous to exer- it, following required. are cise measures any questioning, person Prior to must be right silent, warned he has to remain any may be used evi- statement he does make as against him, right and that he has to dence presence attorney, or an either retained may appointed. defendant waive effectua- rights, provided of these the waiver is made tion voluntarily, knowingly intelligently. If, how- any any ever, he indicates manner stage process that he wishes consult attorney speaking there be before can Likewise, questioning. no if the individual that he does alone indicates manner may interrogated, police not wish be question have him. The mere fact that he questions some answered some or volunteered deprive him of statements his own does not answering any fur- from refrain inquiries he has with an at- ther consulted until questioned.” torney and tobe consents thereafter (Emphasis supplied.) Escobedo, Goldberg, Supreme In Mr. Justice Court, stated:

“Nothing today pow- affects the we have said investigate ‘an unsolved ers crime,’ Spano York, v. New 360 U. S.

(STEWART, J., concurring), by gathering in ‘proper formation from witnesses and other investigative Haynes Washington, efforts.’ v. 503, only U.

373 S. 519. hold that when the We process investigatory accusatory— shifts from to purpose when its focus is the accused and its adversary system to a elicit confession—our begins operate, and, under the circumstances here, permitted the accused must be consult lawyer.” with his

(378 492, 1766, U. 84 S. at Ct. at S. L.Ed.2d 987.) present case, In the the did consult with his defendant lawyer, and, any event, to re- understood the silent, wished, main if he until he consulted counsel or during interrogation. had counsel with him At one time, right. he exercised this my opinion, my

In supported by the view is unanimous decision of Appeals the United of for States Court (Haynsworth, C.J., Fourth Circuit Sobeloff and Bore- man, JJ.) Hall, (4 in United States v. 396 F. 2d 841 Cir. 1968), supra, 21, 1968, cert. den. October 393 U. S. Hall,

S. Ct. 248. robbery In the accused was indicted of federally savings insured and loan association. While seated agent in an having automobile FBI after arrested, been agent if asked Hall he could read and receiving agent answer, write. Before an affirmative printed containing handed Hall a document of much language signed by of the waiver defendant present case, advising Hall Miranda his waiving rights. waiver, those Hall proposed read the said willing sign. he understood signed it and was He name signa at the bottom of the waiver form and his agent. ture was gave witnessed Hall then a de tailed oral robbery identifying account of the himself as the man who agent handed the note to the teller. The made proposed notes and filled out a form of written con- sign. telephone Hall asked to Hall did not

fession which agent only sister, contact. The person he desired to might punishment he receive if did not warn Hall of the charged. In which he convicted the crime with Miranda holding under the the oral confession admissible decision, Judge for the Fourth Circuit Circuit Boreman stated: undisputed the time arrest

“It is that at pun- Agent Dowling not inform Hall of did might he receive if he were convicted ishment charged. robbery Hall with which he was knowledge simply argues that without knowing position make the was not in Mi- Miranda. contemplated by voluntary waiver randa, however, Supreme reflects the Court's detriment, might, that to concern an accused rights by the Constitution forfeit afforded him pos- not aware that he simply he was because rights. in deci- do not find that sessed such We knowledge pun- that sion intimation of he for crime with which ishment charged a of prerequisite is a to valid waiver rights that and we conclude constitutional validity is not vitiated of Hall’s waiver knowledge or information admitted absence of Furthermore, punishment. we possible as to the argument agree that Hall’s are unable to with right validly remain waive his to he not could counsel to the assistance of and his silent respect of counsel with without the advice argument Unquestionably this itself. waiver Mi- beyond Miranda goes and Hall admits. so clearly contemplates an accused randa that rights without a of his make valid waiver deci- counsel. This threshold presence or aid of accused, not are and the is for the sion lawyer to required carry a about with them Miranda rights so which him of those inform him explained to obviously will be envisions judicial law enforcement or authorities. The signed by waiver explained document Hall in simple clear pro- he terms that would be attorney Clearly vided an ‘now’ if he so desired.

Dowling prepared to afford Hall the assis- respect tance of counsel his initial deci- requires sion if Hall wished it. Miranda no more disposed and we are not to fashion a re- such quirement urged. as here Hall,

“From appears record all respects, voluntary understanding made a or intelligent waiver of his to remain silent conclude, and to the services of counsel. We so simply ‘boilerplate because of the statement’ signed because, but also on the facts and cir- surrounding waiver, cumstances the arrest and nothing compel we find contrary Hall result.

himself, earlier, as mentioned did not take stand, hearing chambers, witness even in the purpose controverting limited the tes- timony Agent Dowling, nothing and we find Agent’s straightforward in the and credible tes- timony upon to cast doubt correctness conclusion reached in the court below. As the Su- preme suggested Miranda, express Court ‘An statement willing the individual is to make a statement attorney and does not want an fol- closely by lowed a statement could constitute Arizona, waiver.’ 475, supra, Miranda v. State Ct., 86 S. at 1628.” (396 845-46.) F. 2d at United, Coughlan

See also States, v. (9 F. 391 2d 371 1968), denied, 870; Cir. cert. Keegan 393 U. S. v. United States, F. (9 385 2d 1967), denied, 260 Cir. cert. 392 U. 967; S. and Tucker v. States, United (8 375 F. 2d 363 Cir. 1967).

(3) Although majority any disclaims intention “to en- large scope Miranda,” suggest, I respect, that done, majority as did the

this is has in fact what Special opinion the instant case. Appeals Court in in its my opinion, (and Esco- In of Miranda this extension bedo) likely in sub- is most will result unwise and most injury in law stantial to the enforcement of the criminal this State. portion my way express

Perhaps views the best quote of Escobedo and Miranda is to on this extension dissenting briefly opinions in from those cases. indicating resulting injury dissenting opinions, to law cases, holdings apply with enforcement of the in those holdings in those more to an extension of the even force cases. he put Escobedo when

Mr. Justice well in White 1769, 499, 12 L.Ed.2d at 378 S. at S. Ct. stated U. at 991: suggest law en- for a moment that

‘T do not destroyed by an- the rule will be forcement today. peace and order is The need for nounced crippled and will be too for that. But it insistent difficult, all great made a deal more task its reasons, unsound, my opinion, unstated provisions home in which can find no of the Constitution.” 500, S. Miranda, stated at 384 U. Mr. Justice Clark

In 1641, 16 L.Ed.2d 738: 86 S. Ct. majority support ipse has no dixit of the

“The Indeed, ‘we admits that the Court cases. our might defendants’ statements find the [here] involuntary terms/ traditional been have short, more has added Ante, the Court p. In 457. is entitled requirements accused to the be lawyer that he must to consult with may re- warning that he given the traditional says anything silent and that main Illinois, v. against Escobedo him. used be Now, fash- (1964). Court 490-491 S.U. may a en- ions constitutional rule gage addi- no custodial without tionally advising he the accused that has presence of under the Fifth Amendment during interrogation that, counsel if is funds, without him. counsel will furnished be any point during interrogation the When at affirmatively impliedly accused to in- seeks or counsel, interroga- voke his to silence or forgone postponed. tion must or be The Court pro- further holds that failure to follow the new requires inexorably cedures the exclusion of accused, statement as as well the fruits specific thereof. Such in- strict constitutional serted at the nerve center of crime detection may patient.” well kill the suggest

I present that the extension of Miranda in the eyes case well patient’s close the the sheet draw over body. dead its Harlan, dissenting

Mr. opinion Justice in his in Mi- 504, randa 1643, stated at 384 U. S. S. Ct. 16 L.Ed.2d 740:

“I believe represents decision the Court poor constitutional law and entails con- harmful sequences country large. for the at How serious consequences may prove these only to be time can tell. But the jus- basic flaws the Court’s readily tification apparent seem to me now once problem all sides of the are considered.” later, Still Mr. Justice Harlan stated:

“How much harm this decision will inflict on fairly predicted law enforcement cannot be accuracy. Evidence on the role of confessions is notoriously incomplete, Developments, see su- pra, 941-944, n. little added Court’s reference FBI experience to the and the interrogation. resources believed wasted in See infra, 19, do know that some n. and text. We confessions, crimes cannot be solved without testimony ample expert im- that attests to their control, portance crime and that the Court is in society’s taking a welfare in im- real risk with regime country. posing The its new on the social great rules costs of crime are too to call the new anything experimentation.” a hazardous but 1650, 517, (384 at 16 L.Ed.2d S. at 86 Ct. U. S. 748.) de- the Miranda increase in crime since substantial gives special point cision to Mr. Justice Harlan’s obser- vation.

Apart danger majority opinion as a of the from the against depends precedent, State’s case the largely upon It that the his confession. is doubtful State upon prove its the new trial with- will be able case from the out it is rather clear to me the confession. As in which resulted the defendant did acts record that my case, rape present in and homicide in the terrible by opinion, public is the extension interest not served holdings in instant Miranda and Escobedo of the in case. again my point,

Finally note that in I must on this Amend- opinion provisions of the Fifth Sixth properly not held Federal are ments to the Constitution through allegedly the due applicable the States to be ex- Amendment. I have process of the Fourteenth clause dissenting by prior and concur- in pressed views several regard grave by ring error the Su- opinions in my Court, for this view reasons preme with several Supreme Court, it- hope expressed that with the error, failing self, which proceed to correct that will Congressional Ar- action under be cured error 5 or under Section Federal Constitution III of the ticle Amendment, are men- itself. These of the Fourteenth dissenting opinion in Brukiewa v. my recent tioned in Commissioner, 36, 78, 210, A. Md. 263 2d 331 Police (1970), repeated My point here. and need be present case is reason not to this error is another holdings grave extend the doubts ex- of cases which regard applicability ist in at all. to their States

(4) Finally, I is to me the hold- dissent because it clear ing majority contrary in Miller decision to our State, 362, 530, supra, by a v. A. 251 Md. 2d decided 12, unanimous on November Court 1968. Miller, majority point,

In cited a collateral on girl year there was involved a of a 20 old brutal murder by Gary Miller, aged 16, County Allegany Lee on May apprehended 27 or 1967. The accused Monday, May 29, 1967, and turned to the State Po- over rights, orally lice. He was then of Miranda advised any complicity after which he denied in the crime. Still later, again the accused was of his Miranda advised rights. give The accused then said he a that wished by oral, proceeded long statement and to do a this incul- patory statement, writing which the reduced to officers accused, but which par- after consultation with his ents, sign. refused to At the trial contended the accused Miranda, voluntary that the oral statement was under but the trial court admitted into evidence. The accused guilty affirming was found and sentenced to death. In judgment, Judge bury, Court, Mar for the stated:

“Appellant questions next the voluntariness of the oral which statement into admitted evidence, relying principally upon Miranda v.

Arizona, (1966), Haley 384 U. S. and v.

Ohio, (1948). 332 U. S. 596 In the landmark Supreme case of Miranda the Court set down following guidelines governing po- custodial interrogation: any questioning, lice ‘Prior to person right must be warned that he has a silent, any to remain that he statement does may against him, make be used as evidence and right that he a presence has attor- ney, appointed. The defendant retained or either rights, provided effectuation of these waive voluntarily, knowingly made the waiver is intelligently.’ at 444. 384 U. Both Baker and S. appellant twice in- that the Chabot testified rights as constitutional stated formed However, trial, appellant’s, Miranda. above in warning given objected on the- to the counsel ground if did' Miller not told that that ‘was changed questions his mind answer re- could have then to remain silent he wanted warning- that.’ mained silent after Since such required hold that the- Miranda we was not objection. properly lower overruled court argument urges that the- “Appellant’s main discharge heavy burden its has failed State prove individ imposed Miranda to intelligently custody ‘knowingly and ual against self-incrimination privilege waived his right appointed counsel.’ to retained or and his Zerbst, v. 304 U. S. 458 As in Johnson defined (1938), constitutional fundamental waiver relinquishment right usually ‘an intentional privilege.. of a known or or abandonment depend, . must of. The determination .[which] case, upon particular cir facts and in each case, surrounding including the- cumstances background, of the ac experience, and conduct However, a at 464. statement cused.’ 304 U. S. fully that he understands the accused rights link in the- is not an essential waives at proof. the be shown chain of Waiver Hayes, v. United circumstances. States tendant 1967), denied, (4th Cir. cert. 390 2d 385 F. 375 State, ; Md.App. (1968) Brown v. 3 S. 1006 U. 313, A. 2d 761. 239 case, allegation no there is the

“In instant appellant was mistreated while he was that the custody. that Both Baker and Chabot stated

145 in order promises they or inducement no made get appellant to make a statement. See State, Md.App. 240 A. 2d v. Robinson testimony established uncontradicted 638. The of his constitutional Miller was advised that questioned one hour and and then during thirty-five time he denied minutes which any implication in the crime. fed, appellant After him

ceased. he had been again. requested speak self with the officers beginning interview, At the of this officers again informed Miller of his constitutional rights. Mr. Baker asked: ‘In view of these When you give [warnings], facts do wish to a state my questions?’ appellant ment and answer responded ‘Yes sir.’ We are aware that the Su preme emphasized has Court that admissions of juveniles require special E.g., caution. In re Gault, ; Haley Ohio, (1967) 387 U. S. v. su pra. However, agreeing give appellant coupled statement with the attendant circum stances, proper is the constitutional warn ings beginning questioning period, at the of each allegations any police misconduct, ap no pellant’s request own for the interview when he gave inculpatory statement, persuade appellant, Court that after careful and de consideration, liberate waived his constitutional privileges, voluntarily.” and made his statement (251 377-379, 247 538-39.) Md. at A. 2d at case, present In years age, defendant signed signed the waiver and Miller, Like confession. he stated that he make wished to the statement. In addi- tion, present in the case had counsel with during interrogation. part him short, In the case stronger case, my opinion, bar is a far than was the sustaining Miller voluntary case for character of the holding confession and there had been no violation rights. of Miranda it, present I is no vehicle for de-

As see case Miller, stare parture sub silentia. The doctrine of from requires prior our recent decision decisis us to adhere to every public policy and the sound adminis- and reason justice to me we should tration of criminal indicates n do this. reasons, I reverse. For all of these would Judge Singley Judge I and am authorized to state expressed. Smith concur in the views herein MARYLAND v. STATE OF JONES Term, 442, September 1966.] [No. August 3,

Decided 1970. supplemental The cause brief to Ham- was submitted J., C. and Singley, mond, Barnes, McWilliams, Smith and JJ. Digges, appellant. N. Klauber

Submitted Gerald appellee. No filed on behalf of brief Per Curiam. State,

In v. 247 Md. Jones we reviewed and af- judgment eighteen- firmed a sentence of death for an youth “bloody painful, agoniz- year-old for his eleven-year-old girl. ing rape” judge, on an The trial who

Case Details

Case Name: State v. Fowler

Court Name: Court of Appeals of Maryland

Date Published: Jul 17, 1970

Citation: 267 A.2d 228

Docket Number: [No. 345, September Term, 1969.]

Court Abbreviation: Md.