SYBERT, J., delivered the opinion of the Court.
The appellant, John M. Bean, was indicted by a Charles County Grand Jury on a charge of rape, to which he pleaded not guilty and not guilty by reason of insanity. He elected a non-jury trial, and a two-judge court found him guilty, and further found that he was sane at the time of the commission of the crime and at the time of trial. He was sentenced to the penitentiary for life and this appeal ensued.
The victim of the rape was a housewife whose home was on the outskirts of La Plata, the county seat of Charles County. On October 11, 1962, at approximately 12:45 P.M., on entering her basement from an outside stairway, she observed a person (whom she later identified as the appellant, a fifteen year old colored youth) standing in a large closet where food was stored. As she turned and ran up the steps to the outside, she could see that the intruder was following her with a baseball bat. At the top of the stairs she was struck on her head, dragged down the steps, struck again, and gagged with her apron, and her assailant then ravished her. She remained conscious. After the attack the assailant stated his intention to kill her, but she was able to dissuade him after pleading for some time and offering him money. After her assailant departed, the victim went to a neighbor's home, told of the attack, and asked that an ambulance be called to take her to a hospital. The neighbor called the police and an ambulance. The county sheriff arrived at the neighbor's home at about 1:00 P.M. and talked with the victim as she was being placed in the ambulance. As a result, the sheriff put out a lookout for a young colored male wearing a blue plaid shirt. A baseball bat, a torn apron and two sizeable spots of blood were found in the basement of the victim's home.
At 1:45 P.M. the sheriff and a deputy went to the appellant's home in or near La Plata. The appellant told the officers that he had been at home that day except for a short walk. The officers
The sheriff then returned to the Bean home and talked with the appellant's sister and another girl there. He thereupon obtained two warrants for the arrest of the appellant, one charging rape and the other assault with intent to murder. At least one of the warrants was read to the appellant about 6:00 P.M. At 7:00 P.M. the appellant was taken to the county jail, located next door to the courthouse, and was placed in the juvenile detention room, which had a bunk and water facilities in it. From that time until 12:00 midnight, the appellant remained in the detention room while the deputies investigated the case. The investigation having been finished, at least for that day, the appellant was taken at or a little after midnight to the sheriff's office, where he was fingerprinted and then taken
The appellant was subsequently identified by the victim, once from a photograph while she was still in the hospital, and once after seeing him in the sheriff's office. In addition, the victim testified that she had seen the appellant on the road in her neighborhood several times prior to the attack. At the trial she identified him as the perpetrator of the rape when (as the trial court commented in reviewing the evidence before verdict) he was sitting with several other young men of about his age.
The appellant's seventeen year old sister testified that he had left their home before she awakened at about 11:30 A.M. to 12:00 noon on the morning of the crime, but that he had come home about a half hour before the sheriff arrived. She said he took white shoe polish (the evidence indicates that he was wearing white canvas shoes) and a glass to a spring near the house, and both she and the sheriff testified that his shoes were cleaned or freshly polished. The sister further testified that he had changed his clothes and started a fire in the outside stove.
One of the psychiatric reports in the case shows that the appellant was six feet and one inch in height, and weighed 140
The appellant has raised several questions here, the first being that the lower court committed reversible error in admitting his confession in evidence. Two main reasons are asserted: first, the confession was not voluntarily made, and second, the confession was not admissible because it was obtained while the appellant was under illegal detention. We shall first consider the question of voluntariness and then the legality of the detention at the time the confession was made.
The rule as to the admissibility of confessions and review on appeal was recently restated by this Court in Abbott v. State, 231 Md. 462, 465, 190 A.2d 797 (1963), as follows:
See also Ralph v. State, 226 Md. 480, 174 A.2d 163 (1961), cert. den. 369 U.S. 813 (1962); Presley v. State, 224 Md. 550, 168 A.2d 510 (1961), cert. den. 368 U.S. 957 (1962); Hall v. State, 223 Md. 158, 162 A.2d 751 (1960); Merchant v. State, 217 Md. 61, 141 A.2d 487 (1958); and Grammer v. State, 203 Md. 200, 100 A.2d 257 (1953), cert. den. 347 U.S. 938 (1954).
Viewing all of the facts and circumstances of this case, we do not believe that the lower court abused its discretion in finding that the confession was voluntary and therefore admissible. The appellant has set forth several factors which he contends
The appellant did not have benefit of counsel before he made his confession, but this fact would not necessarily render the confession inadmissible. Nor did the appellant talk to members of his family. The sheriff had made a search for the appellant's father in the afternoon, as the result of which the father came to the sheriff's office at about 6:00 P.M., but neither he nor the appellant asked to talk with each other. The father made no effort to obtain counsel to confer with the appellant, nor did either request that counsel be supplied. It has often been held that failure to consult with counsel or family, especially where not requested, will not in itself render a voluntarily made confession inadmissible. Miller v. State, 231 Md. 158, 189 A.2d 118 (1963); Jones v. State, 229 Md. 165, 182 A.2d 784 (1962); and Hyde v. State, 228 Md. 209, 179 A.2d 421 (1962). See also Crooker v. California, 357 U.S. 433, 2 L.Ed.2d 1448 (1958).
The appellant also contends that his age and mental ability
It was admitted by the appellant on the stand that no physical force was used and no threats or promises were made either by the sheriff or his deputies in order to obtain the confession. The appellant testified that the deputy who questioned him "told me to `come on, confess' to get it off my chest". The deputy stated that he told the appellant "I'd like him to get it off his chest". Regardless of which version is accepted, neither
The appellant has placed great emphasis on the case of Haley v. Ohio, 332 U.S. 596, 92 L.Ed. 224 (1948), wherein the Supreme Court held that it was reversible error to receive in evidence a confession of a 15 year old boy, who had been questioned for five straight hours "through the dead of night by relays of police". However, in Haley, it was the youth of the defendant, in combination with the protracted and coercive nature of the questioning, or, as stated in Culombe v. Connecticut, 367 U.S. 568, 624, 6 L.Ed.2d 1037 (1961), "the totality of circumstances", that invalidated the confession. In the present case there was no protracted and unrelenting questioning by relays of police. The appellant confessed after being questioned for something less than one hour by a single officer. Longer periods of questioning by more than one officer have often been held not to invalidate a confession. Jones v. State, 229 Md. 165 (supra); Ralph v. State, supra; and Presley v. State, supra. While the questioning occurred late at night, this was necessitated by the fact that it was only then that the officers had completed their preliminary investigation, and the appellant had just had five hours' rest. Cf. Jones v. State, 188 Md. 263 (supra), wherein this Court upheld the admission of a confession as voluntary even though the defendant, who was 18 years old, had been arrested at midnight, driven from Salisbury to Harford County (a distance of some 100 miles), and questioned from 5:00 A.M. until 5:30 A.M., when the confession was made.
Considering the allegations of the appellant in light of all the circumstances in the present case, we believe that the State
As a second ground for excluding the confession, the appellant claims that it should not have been admitted because it was obtained while he was under an illegal detention. This claim is based upon the allegation that when the appellant was arrested and placed in jail, only one warrant was issued, that charging assault with intent to murder, and since this was a crime not punishable by death or life imprisonment, it was not a case for the criminal court, but one for the juvenile authorities under Code (1957), Art. 26, Secs. 51, et seq. Therefore he claims that any proceeding without a waiver of jurisdiction by the juvenile court pursuant to Sec. 54 of Art. 26 and Maryland Rule 911, including an examination by the police, was improper. However, the record clearly shows that two warrants were issued on the day of the crime, one charging rape and the other assault with intent to murder. The sheriff, several deputies, and the magistrate who issued the warrants, testified that they remembered only one warrant, but even so, the warrant which they recalled having been issued and read to the appellant was the one which charged rape, not the assault warrant. The crime of rape being punishable by death or life imprisonment, Art. 27, Sec. 461, the juvenile court did not have jurisdiction thereof, under the terms of Art. 26, Sec. 52(e), and thus it was unnecessary for it to waive jurisdiction before there could be a proceeding in the criminal court. Savoy v. Warden, 216 Md. 616, 139 A.2d 257 (1958). But even if only the warrant charging assault with intent to murder had been issued, the detention of the appellant was not illegal. A proceeding before the juvenile court is not instituted at the time of arrest but thereafter by the filing of a petition by the State's Attorney or some other person having knowledge of the facts, pursuant to Rules 902 and 903. Prior to the filing of such a petition, the State has the right to conduct a normal investigation,
The next contention raised by the appellant is that the trial court committed prejudicial error in permitting the victim of the rape to testify as to her extrajudicial identification of the appellant. While still in the hospital, the victim was shown four or five photographs of young colored men (up to 20 years of age) and picked out the appellant as her assailant. On another occasion, she identified the appellant as her assailant in the sheriff's office while he was standing by himself. The short answer to the appellant's claim is that all testimony relating to these identifications was elicited by counsel for the appellant, not the State. Having brought up the subject, the appellant is hardly in a position to claim that the testimony relating thereto was not admissible. In any event, an extrajudicial identification is admissible in evidence if made under circumstances which establish its fairness, integrity and reliability. Proctor v. State, 223 Md. 394, 164 A.2d 708 (1960). There was no evidence introduced to show that the identifications made by the victim in the present case were not fair and reliable. The victim had seen her assailant several times before the day of the crime; she had previously refused to identify another suspect as her assailant; and the circumstances under which she identified the appellant were entirely proper. But even if the testimony now complained of had been improperly admitted, there would be no prejudicial
The appellant also maintains that the lower court was in error in considering the evidence with respect to the baseball bat which the assailant used to strike the victim, the burnt clothing and buckle which were found in the stove at his home, and the testimony that the appellant polished his shoes upon coming home on the day of the crime. The seized articles were submitted to the FBI for analysis, but the findings were negative. However, the evidence about which the appellant now complains was admitted without objection, and therefore its admissibility is not before this Court. Rule 885. Thus, it was for the trial court, as the trier of fact, to determine what weight should be given to such evidence. Gault v. State, 231 Md. 78, 82, 188 A.2d 539 (1963).
Finally, the appellant contends that the trial court lacked jurisdiction and venue to try the case because "at no point in the evidence was it established that the alleged crime took place in the State of Maryland or in any specified county thereof." However, the testimony plainly showed that the victim's home, where the offense occurred, was on the outskirts of the town of La Plata, which is the county seat of Charles County, in this State, where the trial was held. Geographical facts of a local nature may be judicially noticed by a trial court to establish venue, and this is particularly true as to the location of towns within a particular county where the court sits. See Iozzi v. State, 224 Md. 42, 166 A.2d 257 (1960) (approving judicial notice that the town of Arbutus is within Baltimore County), and Dean v. State, 205 Md. 274, 107 A.2d 88 (1954) (approving judicial notice that certain streets are located in Baltimore City). Obviously if the trial court could take notice that La Plata is in Charles County, it could take notice that the County is within this State. Moreover, with respect to the question of venue, as distinguished from jurisdiction, any objection as to improper venue was waived by pleading to the charge. Cole v. State, 232 Md. 111, 194 A.2d 278 (1963), and cases cited. See Rule 725 b.
Finding no error below, we shall affirm.
Judgment affirmed.
There can be little doubt that an inexpiable and very brutal crime, as it was described by her, was committed at the home of the prosecuting witness on October 11, 1962. Also there is little doubt that the State offered sufficient evidence, extrinsic of appellant's confession, to have warranted his conviction of the offense of rape, which formerly, in many jurisdictions, would have justified an affirmance of the conviction. However, the Supreme Court of the United States, in comparatively recent years, has laid down certain rules with reference to constitutional questions that are binding upon all of the State courts. Hence, we must examine the evidence in the light of those rules and see if it can stand the test of disclosing that appellant was not denied due process of law, for under our constitutional system of government, the guilty, as well as the innocent, must be afforded constitutional due process. Culombe v. Connecticut, 367 U.S. 568. And in determining whether there has been a denial of due process by reason of admitting a coerced confession, the Supreme Court will not consider the sufficiency of the evidence extrinsic of the confession to sustain the conviction. Haynes v. Washington, 373 U.S. 503; Haley v. Ohio, 332 U.S. 596. Cf. Fahy v. Connecticut, 375 U.S. 85.
I concur in all of the rulings of the majority, except the holding that the State proved the appellant's confession was "freely and voluntarily" given. I accept the quotation from Abbott v. State, 231 Md. 462, used by the majority, as being the unquestioned law of this State, and also recognize that no physical violence, threats thereof, or promises were used to extract a confession from the accused. However, a confession may be "coerced," and therefore inadmissible as evidence, without these factors being present. Culombe v. Connecticut, supra. In Culombe, the Supreme Court stated that the police may make a suspect an unwilling collaborator in establishing his guilt "not only with ropes and a rubber hose * * *, by relay questioning persistently, insistently subjugating a tired mind [but also] by subtler devices. * * *. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is,
Before attempting to apply the above tests to our present case, it will be necessary to add slightly to the statement of facts of the majority, because one cannot get from them the full picture as it is disclosed in the record extract. Appellant is a Negro adolescent, fifteen years of age, "emotionally unstable," with an I.Q. of about 61, one of "borderline intelligence." Another test showed the I.Q. to be about 74. Upon being notified of the crime, the sheriff, immediately and properly called in "all of the deputy sheriffs he could locate." He and Deputy Sheriff Canter located appellant at his home, at about 1:45 p.m. on the day of the offense, and, after questioning him left him there. Shortly thereafter, the sheriff radioed Deputy Sheriff Jameson to bring appellant to the house of the
Thus, it is seen that it is doubtful whether the statement in the majority opinion "appellant confessed after being questioned for something less than an hour by a single officer" is completely accurate. Between 3:30 p.m. on October 11 and 2:00
Appellant testified he had eaten breakfast in the morning, but had had no food since that time and when he confessed. He also had had no water or other liquid to drink after being arrested, and had not been to sleep after being placed in jail. Cooksey told him to "come on, confess, to get it off my chest," he "got tired of fighting it, so I went on and confessed."
Applying the principles of law laid down by the Supreme
Can it realistically be said that a confession obtained under the above circumstances (a) was not "obtained in an atmosphere of substantial coercion and inducement"; (b) was obtained under a situation where "the totality of circumstances" did not evidence a confession that was not freely and voluntarily (as these are defined by the law) made; or was obtained at a time when the appellant still maintained his "governing self-direction" and there was no "compulsion, of whatever nature or however infused, [that] propel[led] or help[ed] to propel the confession"? I believe not; the same tactics have induced many mature, well-educated men to confess.
The facts in the case of Haley v. Ohio, 332 U.S. 596, were quite similar, but somewhat more drastic, to those in the case
I would reverse, and remand for a new trial.
Chief Judge Brune and Judge Horney have authorized me to say they concur in this dissent.
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