Appeal from the Circuit Court for Allegany County; Naughton and Getty, JJ.
Hammond, C. J., and Marbury, Barnes, Finan, Singley and Smith, JJ. Marbury, J., delivered the opinion of the Court. Barnes, J., concurred in the result and filed a concurring opinion. See p. 383 infra.
On October 30, 1967, the appellant, Gary Lee Miller, was convicted of murder in the first degree in the Circuit Court for Allegany County, Judges Naughton and Getty presiding without a jury. On November 16, 1967, he was sentenced by the court to suffer death by the administration of a lethal gas. From that sentence he has appealed. Two questions are raised on appeal: I, was the alleged oral confession in this case given voluntarily and was the lower court in error in allowing a State's witness to read the typed unsigned statement into evidence; and II, was the evidence sufficient to convict the appellant of the crime of murder.
There was evidence adduced in the lower court as follows: On Saturday night, May 27, 1967, the victim, Judy Lee Ziegler, aged twenty, went in her automobile, a yellow Corvair, with three girl friends to see a movie in Frostburg, Maryland. She took her other companions home, leaving the last two at their homes in Finzel, Maryland, about three miles from the Maryland-Pennsylvania line, at approximately 11:55 p.m. The next
time she was seen was the following morning around 9:30 a.m. when Mrs. Annie Robinson and Mrs. Mary Lou Thorp discovered her battered body near Mrs. Robinson's house.
The scene of the crime was located near an area known as Butternut Hollow, which lies in an easterly direction off the Hoffman Road in Allegany County. The victim's body was found about 140 feet east of the Hoffman Road on a steep embankment surrounded by trees, brush and large stones. A Japanese sabre knife covered with blood was discovered 63 inches from the girl's body. Her automobile was found in the water of Elk Lick Dam in Pennsylvania with a forked stick lodged between the dashboard and the accelerator. Among other items, a panty girdle and pants were recovered from the glove compartment. Dr. Benedict Skitarelic, the medical examiner for Allegany County, performed the autopsy and found numerous blunt and sharp injuries on her skull and body. He stated that the victim's forehead and right temple were crushed, and that she received lacerations on her back made with a sharp instrument. Her throat was cut but there was no evidence of sexual molestation. The doctor estimated the time of death between the hours of 12:00 midnight and 6:00 a.m. on May 28, 1967. He determined that the cause of death was a crushed skull.
On Monday, May 29, 1967, the appellant, aged sixteen, born September 27, 1950, was taken into custody from his ninth grade classroom in Meyersdale High School, Meyersdale, Pennsylvania, by Pennsylvania State Trooper Ronald Delano and State Probation Officer William Long at 2:00 p.m. He was taken to the Meyersdale City Council room at 2:10 p.m. where he was turned over to Maryland State Trooper Bernard Chabot and Allegany County Investigator William F. Baker. Mr. Baker's testimony in this respect was:
"Q. What did you and Trooper Chabot say and do then?
A. I immediately warned the defendant of his full constitutional warning.
Q. What is that constitutional right warning?
A. I introduced myself. I told him that I was County Investigator William F. Baker of the State's Attorney's
office in Allegany County, Maryland. I told him that my companion was Trooper First Class Bernard J. Chabot of the Maryland State Police. I then stated the following: You have the absolute right to remain silent. The constitution requires that I so inform you of this right and you need not talk to me if you do not wish to do so. You do not have to answer any of my questions. Should you talk to me anything you might say in answer to my questions can and will be used and introduced into evidence in court against you. If you want an attorney to be present at this time or any time hereafter you are entitled to such counsel. If you cannot afford to pay an attorney one will be appointed for you if you so desire. Any statement you do make here must be made willingly, freely and voluntarily, without any threats or promises of reward being made to you. In view of these facts do you wish to give a statement and answer my questions. Gary Miller's answer was, 'Yes sir.'"
After being apprised of his constitutional rights, appellant was questioned from 2:10 p.m. until 3:45 p.m., at which time he gave an exculpatory statement and denied any complicity in the crime. After a five minute recess, until 3:50, then from 3:50 to 4:45 p.m., Mr. Baker and Trooper Chabot made a physical check of him, took photographs and removed certain personal property from him. Multiple abrasions, scratches and several thorns were found on appellant's body. At 4:55 p.m. he was turned over to Sheriff Walker of Somerset County, Pennsylvania, and was given a meal of two hamburgers and a milkshake.
After the investigating officers discussed the case further among themselves, they left the station to go to search appellant's home. As to what then transpired, Mr. Baker testified:
"While enroute to Gary Miller's residence at 6:10 P.M., we received a call via radio, State Police radio, to return to the Meyersdale Police Department. We did return to the Meyersdale Police Department at 6:20 P.M. At that time I was confronted with Sheriff Walker, who informed me that Gary Miller had asked
that we return to the Police Department, that he wanted to tell the truth. At 6:30 Gary Miller was brought into the Chief of Police's office, Paul Lotz, and at that time Trooper Chabot and I started to take a statement from Gary Miller. Again he was warned of his full constitutional rights.
Q. Is this, these questions and answers were written or typed down by you at the time they were asked and answered? A. Yes sir. I'll explain that further. I would type the question and as Gary Miller answered my question I would type the answer and that followed through from the beginning of the statement to the end of the statement.
Q. Now would you read the beginning what the constitutional warning was and the questions and answers? A. The statement is headed 'Statement of Gary Lee Miller Given to County Investigator William F. Baker of the Allegany County, Maryland, and Trooper First Class Bernard J. Chabot of the Maryland State Police at the Meyersdale Police --
(Judge Naughton) We don't want to know what the beginning of the statement was. What was the constitutional warning I believe that was the question.
A. The following is the constitutional warning: You have the absolute right to remain silent. The Constitution requires that I so inform you of this right and you need not talk to me if you do not wish to do so. You do not have to answer any of my questions. Should you talk to me anything you might say in answer to my questions can and will be used and introduced into evidence in Court against you. If you want an attorney to be present at this time or any time hereafter you are entitled to such counsel. If you cannot afford to pay an attorney one will be appointed for you if you so desire. Any statement you do make here must be made willingly, freely and voluntarily without any threats or promises of reward being made to you. In view of these facts do you wish to give a statement
and answer my questions. And his answer was 'Yes sir.'"
(Judge Naughton) Now that was the warning you gave him before you took this statement that you are about to testify to?
A. Yes sir, that is correct.
Q. That is the second time you had given him the warning? A. Yes sir, that is correct.
Q. This interview was conducted at his request on this occasion? A. Yes sir, that is correct.
(Mr. Schindler) I'm going to object to the warning on the ground that he was not told that if he did answer any questions and changed his mind and then wanted to remain silent he could have remained silent after that. That hasn't been included in the warning.
(Judge Naughton) Objection overruled."
Then the lower court allowed Mr. Baker to read into evidence the unsigned statement made by Gary Lee Miller. Because of the importance of its admission into evidence we quote the statement in its entirety.
"Q. Proceed Mr. Baker please. A. Question: 'State your name, age, residence and occupation.' Answer: 'My name is Gary Lee Miller. I am sixteen years old. I live with my parents, Elsie Virginia Miller and Harold F. Miller, at R.D. 3, Box 88, Meyersdale, Pennsylvania. I am in the ninth grade at the Meyersdale Area High School.' Question: 'Gary, what if anything --
(Mr. Schindler) Objected to. I just want the record to show that there is an objection by the Defense to every question and every answer that is being given.
(Judge Naughton) Your objection has already been read Mr. Schindler.
A. Question: 'Gary, what if anything can you tell me about your activities on Saturday, May 27, 1967.' Answer: 'I got up about 7:00 o'clock that morning and went up to my grandmothers and visited until ...