Appeal from the Circuit Court for Harford County (DAY, C.J., and HARLAN, J.).
The cause was argued before the entire Court.
HAMMOND, J., delivered the opinion of the Court.
Frederick Morris Mefford and Earl LeRoy Blackburn were indicted jointly by the Harford County Grand Jury for the fatal shooting of a gas station attendant in the course of a robbery. Each was convicted, in separate trials, by Judge Day and Judge Edwin Harlan (of Baltimore, specially assigned), sitting without a jury, of murder in the first degree, robbery and robbery with a deadly weapon, and given concurrent sentences of death for the murder, ten years for the robbery, and twenty years for the robbery with a deadly weapon. Their appeals to this Court were argued on the same day, and since they arise from the same occurrence, have many common facts, and call for evaluation of, and decision on, similar principles, we deem it appropriate to consider and dispose of them in one opinion.
In the early morning hours of Sunday, March 4, 1962, one Sinder, who was tending a gasoline service station on Route 40 at Joppa in Harford County was robbed at gun point by two men of some $103 of the station owner's money. The men left and soon after one of them returned and shot Snider in the head. He died several hours later. Not long after the shooting he said he had been held up and robbed by two men, one with reddish bushy hair and the other with dark hair. He did not recognize the men.
At Mefford's trial, a nearby restaurant attendant, who had talked to Snider after the shooting, could not say that Snider had identified the man who returned and shot him, but at Blackburn's trial, the witness said he was almost sure Snider had told him the bushy haired man had done it. The State proved at each trial that a cartridge case and a spent bullet which were found at the scene of the crime had been fired from a .32 calibre Savage pistol owned by Mefford, and by him turned over to the police, as well as that Mefford owned a 1955
red Chevrolet hardtop car with automatic transmission, and that such a car had been seen along Route 40 north of Baltimore during the late night of March 3 and the early morning of March 4, with its two male occupants surveying gasoline stations, and that within minutes of the time of the holdup the car had been observed on Route 40 heading towards Joppa.
It was brought out also in each trial that on April 16, 1962, a filling station on Route 40 at Chesaco, in Baltimore County, had been robbed by men who used the techniques used by the robbers at the station at Route 40 and Joppa. The State police who were investigating the Joppa case and the Baltimore County police assigned to the Chesaco case began to cooperate in an effort to solve both crimes, believing them to have been committed by the same individuals.
Mefford gave oral confessions and a written confession and Blackburn made a written confession, and each said the other had done the actual shooting.
Mefford contends that the evidence was insufficient to support the convictions and that his confessions were involuntary. A subsidiary contention is that a motion for a mistrial should have been granted. The State objected to a question by Mefford's lawyer on cross-examination and the objection was sustained. After an extended colloquy, the ruling was changed and the question was allowed to be answered. Appellant contends that he was deprived of effective cross-examination because of the delay between the first asking of the question and the time the answer was allowed. We believe that whatever effect the answer was intended to produce and capable of producing was not lost on the Judges, who were the triers of fact (and may have been emphasized). We find no error in the ruling complained of.
Blackburn contends that his confession should have been excluded because involuntarily made and because, even if voluntary, it was inadmissible by reason of a failure to hold a preliminary hearing and a denial of his requests to be immediately charged and afforded counsel. A subsidiary contention is that statements of his wife to him at the police station, testified to by a policeman, were hearsay and should not have been admitted. Appellant (apparently as a prelude to testimony he
later gave that at the meeting with him, his wife was crying and in a "state of frenzy" because the Baltimore County police had grilled her for five hours to make her say she could not support her husband's alibi for the night of the murder) asked a State trooper on cross-examination whether Mrs. Blackburn was not "crying and hysterical." The witness replied that she was crying "after she talked to her husband" but was not hysterical. On redirect examination the Judges permitted the trooper to be questioned on what Mrs. Blackburn said because the matter had been opened up by the appellant, her statements were made in Blackburn's presence and were relevant on the reasons for her crying. (Among other things, she asked Blackburn "why he did it" and said "there was no reason to kill a man.") After Blackburn had testified as to why he thought she was crying, a Baltimore County detective and the State trooper, both of whom overheard the conversation between Blackburn and his wife, were called in rebuttal. They testified that she said she wished her husband had stayed home and not "run around" with Mefford and that in the course of the conversation Blackburn had told her that he and Mefford had done the thing that had happened at the service station in Joppa and he did it to protect her and their six-year-old daughter Debbie (Blackburn testified that Mefford had threatened him on occasion with harm to Debbie if he would not take part with Mefford in holdups). They said it was then Mrs. Blackburn began to cry and say that if he had stayed home where he belonged with her and Debbie it would not have happened.
No question of an improper adoptive admission of Mrs. Blackburn's remarks by Blackburn, while in police custody, is here presented, as the appellant contends. Under the Circumstances we have detailed, we see no prejudicial error in the admission of the testimony complained of. The State was entitled to rebut Blackburn's claim that his wife was crying because of police treatment and to show that Blackburn, knowing the police were listening, made incriminating admissions, or confessed, in the course of a conversation with his wife, a conversation he had requested he be allowed to have with her.
Page 504} Mefford's Contentions
The argument that the evidence was insufficient to convict is made because Snider said he did not recognize the men who robbed him. Whatever the reason -- perhaps the shortness of the time they had worked at the same station some two years before, or the stress and effect of the shooting -- the confessions of Mefford (which we find to have been properly admitted), considered with the proof of the corpus delicti and the facts that Mefford's pistol was used to shoot Snider, his motive for the shooting (feared recognition by Snider) and the presence of a car like Mefford's near the scene at the time of the shooting, certainly properly permitted the triers of fact to have been persuaded, as they were, beyond a reasonable doubt, that Mefford was one of the two guilty men.
Mefford's claim on the inadmissibility of his confessions is that he was illegally arrested and illegally detained and was denied the right to call his family or a lawyer. He was arrested about ten-thirty in the morning on April 20 by the Baltimore County police who wanted to question him about the robbery at Route 40 at Chesaco and, incidentally, about the case at Route 40 and Joppa. He was interrogated during the day and then placed in a cell in which there was a metal bunk and toilet facilities. The next day, Saturday, he was again questioned, and at about 4:30 was taken to the Essex police station, which was better equipped for overnight prisoners, for the weekend. He was not questioned Saturday night, Sunday (which was Easter), or Sunday night but, he says, permitted to sleep when he wanted to, without interruption. He was fed regularly although he says the meals were not good, particularly one consisting of a cold hamburger and a cup of cold coffee. He says he asked on numerous occasions for a chance to call his family and a lawyer, but was refused. He says also that he was told he would be held seventy-two hours and then released, but picked up again and held for a similar period, and so on, until he confessed.He does not claim he was otherwise in any way coerced or that he was physically manhandled and says the County police did not break him down. Indeed, he does not claim (and there is no testimony that it was a fact) that the County police questioned him about the crime the State police
were investigating. On Monday morning he was brought back to Towson and, after being questioned for a short time, was given back his belongings, including a knife, and released. He was arrested outside the Towson police headquarters by Corporal Seekford, of the State police, who was in charge of the investigation of the Joppa case, and who had been told by the County police that they had in custody a "particular suspect" in the Joppa case whom they were going to release. Mefford's wife had called the County police during the weekend and had been told she could see her husband Monday at Towson. When she arrived Mefford had been released but he left with the police his endorsed paycheck -- which she was seeking -- and the police gave it to her. His reason for leaving the check, he told the police, was that he was not going home and he was not afraid to leave the endorsed check with the police because, he said, "[i]f you can't trust the police, who can you trust?"
Corporal Seekford took Mefford to Benson Barracks near Bel Air where, Mefford says, he was given the first "decent" meal he had had since his arrest. After lunch Seekford took Mefford to the North East Brracks where Sergeant Stacey, the polygraph expert, had his headquarters and his apparatus. Stacey talked to him for an hour or so, and then he was given supper. After supper Stacey again questioned Mefford for an hour and a half. The officers testified that Mefford at that point volunteered that he would clear up the Route 40 cases if he could see his wife and arrange for the sale of his car so she would have some money. This suggestion came from him, not from the police. As a result of the questioning at North East Barracks, Corporal Seekford took Mefford on a trip in a police car. They left about ten that night (Monday, April 23) and, driving slowly, with a stop for a soft drink, arrived at Mefford's home in Armistead Gardens near Baltimore about an hour later. On the way Mefford says he gave Seekford the knife he had (with which, he said, he could have "inflicted" the officer, the State police not, apparently, having searched him). Mefford greeted his wife and child and then got from her the keys to a 1950 Plymouth car, which was in their garage. A search of the trunk of the Plymouth for the murder weapon, which Mefford expected to be there, produced nothing. Seekford
next drove Mefford past 723 Luzerne Avenue in Baltimore, where Blackburn lived, and then out Route 40 to Chesaco, where Mefford made several telephone calls, including one to his brother-in-law, Irvin Ellis, who lived near Reisterstown. Accompanied by Detective White, of the County police, who had joined them at Chesaco, they drove to Ellis' place where, at Mefford's request, Ellis gave Seekford a white bag in which were a .32 calibre Savage pistol -- the murder weapon -- and a sawed off shot gun (Ellis had taken them from the Plymouth to protect Mefford when he learned he was in police custody). Seekford took Mefford to Towson where he was incarcerated until morning and then returned him ...