State v. Small ( 1966 )

TAPLEY, Justice.

On exceptions. The defendant, Clifford G. Small, III, was tried and convicted of the crime of robbery at the September Term, A.D. 1964 of the Superior Court, within and for the County of Cumberland. The case is before us on five exceptions. Exception #3 has been waived and, therefore, not considered by us. Counsel for respondent filed two motions, (1) motion for a directed verdict of not guilty; and (2) motion for mistrial; both of which were denied.

In his exceptions the defendant claims there was insufficient evidence to sustain, beyond a reasonable doubt, the identification of defendant as the assailant of Henry D. Thompson, the victim of the robbery; that the alleged admissions of the defendant were improperly admitted because they were made after the interrogation had entered the accusatory stage of the investigation without the defendant having been advised of his right to counsel and to remain silent. The exceptions also bring before this court the question of the presiding Justice allowing numerous questions propounded to a witness who refused to answer on the grounds of self-incrimination, claiming these questions under the circumstances were, in their nature, prejudicial to the respondent. Defendant further contends that the case lacks evidence of probative force proving that the defendant took money from the person of Thompson.

The evidence discloses that Henry D. Thompson at the time of the alleged robbery, on June 4, 1964, was an employee of a Portland hotel. He left his employment at 1:15 A.M. on June 4th and proceeded to his apartment which was located a short distance from the hotel. When he approached the door of the apartment house he was accosted by a man who asked him where “800 block was” whereupon Thompson directed him. Thompson further testified that he then walked up three stairs to the door leading into an apartment house, unlocked the door and went inside; that as he turned to shut the door it was pushed open by a man whom he later identified as the defendant and as a result of the pushing Thompson fell to the bottom of the stairs. He sustained injuries, from which he bled profusely. He finally got up to his apartment on the second floor and it was there he discovered that his right hand pant’s pocket had been turned inside out and his money was not there. On June 8th Thompson was called to the police station where he found the defendant in custody and where he identified him as the person who assaulted him on June 4th.

During the trial of the case Thompson identified the defendant, as he sat in the courtroom, as the person who asked directions and later assaulted him.

There was no evidence presented to the jury on behalf of the defendant to contradict the testimony of Thompson. Thompson’s testimony stands uncontradicted and unimpeached and the jury obviously accepted it as being true. Apparently the searching cross-examination of Thompson on the question of identification did not impress the jury.

Positive identification, if believed by the jury, is sufficient to warrant conviction. Pluckett, Jr. v. State, 234 Md. 536, 200 A.2d 74; Coates v. State, 232 Md. 72, 191 A.2d 579.

For a comprehensive treatment of the subject of identification, reference is made to the annotation in 71 A.L.R.2d¡ beginning on page 449.

The testimony of Mr. Thompson as to his identification of the defendant was competent, its probative force being for jury determination.

This exception has no merit.

The officers at the police station confronted the defendant with Mr. Thompson for the purpose of identifying, if possible, the defendant. Mr. Thompson testified as to events which occurred at the police station in the presence of the defendant.

Immediately upon being identified by Mr. Thompson, Small spontaneously, freely and voluntarily said, “I am sorry.”

We emphasize the fact that the response, “I am sorry” was not the result of or in response to any question directed to the defendant by any officer or even by the complainant.

During the examination of Officer Joyce the following testimony was developed :

“Q. Did Mr. Small make any statements that time?

A. No.

Q. In the presence of you, Mr. Thompson, Captain Koshian, did Captain Koshian, or anyone else, ask Mr. Small whether or not he was responsible for this assault and battery?

A. We did.

Q. Who asked the question, if you recall ?

A. I asked him.

Q. What was his answer to that?

* * * * * *

A. He could not remember what he did that night because he had been drinking.

Q. That was the entire answer?

A. Yes.”

Captain Kochian of the Portland Police testified, in part:

“Q. Hear any conversation between Mr. Thompson and Mr. Small at that time?

A. That wasn’t the sequence. I asked Mr. Small if, what his answer was to Mr. Thompson’s allegations. Small said: T can’t remember. I was drunk.’

Q. Did Mr. Small, in your presence, say anything to Mr. Thompson directly, as you recall?

A. I can’t recall that he said anything directly, but I asked Mr. Small if he knew where he was at the time this happened; if he did, to tell me and I would try to check it out and find out if his story was correct.

Q. What did he say to that ?

A. He said: T can’t remember too much. I was drinking.’

Q. You notice anything about the appearance of Mr. Small at that time regarding his hands?

A. There were some abrasions on his knuckles. I can’t remember whether the right or left hand. I did ask him about the abrasions.

❖ * * * * *

Q. What did he say?

A. He thought he got that in a fight with some Norwegian sailors, or something.

Q. At that time did Mr. Small have on the eye patch he has on now?

A. No, he did not.

Q. In your presence, did Mr. Small ever deny that he committed this act upon Mr. Thompson?

A. All he said, he couldn’t remember, he was drinking, he couldn’t remember where he was. He didn’t actually deny it, nor did he say that he was guilty of it. As far as I can remember, all he said was he was drinking and he couldn’t remember.”

Counsel for the defendant contends that when Thompson identified the defendant as the person who assaulted him when his money was stolen the case entered the accusatory stage and that at that point the defendant was entitled to be advised of his constitutional rights; that he should have been informed of his right to counsel and because this was not done any incriminating admissions or confessions would not be admissible against him.

Significantly incriminating admissions in criminal cases are to be considered in the same category as confessions and treated as such in determining their admissibility. Michaud v. State, Me., 215 A.2d 87.

In Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) the court said:

“We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ * * * and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” (emphasis supplied).

Danny Escobedo had been arrested and brought to the police station for questioning about the murder of his brother-in-law. He was not at that time formally charged with a crime but he was in custody. He requested counsel. Escobedo’s mother had previously engaged counsel who went to the police station. Counsel was refused the right to consult with his client as he was told that he could not see him until the questioning had been completed. Escobedo and his counsel were not permitted to consult with each other during the entire period of interrogation. Escobedo was not warned of his right to remain silent. After several hours of interrogation Escobedo made certain admissions which implicated him in a plot to commit murder. The principles announced by the court in Escobedo are grounded on the above stated facts.

“ * * * detection and solution of crime is, at best, a difficult and arduous task requiring determination and persistence on the part of all responsible officers charged with the duty of law enforcement. And, certainly, we do not mean to suggest that all interrogation of witnesses and suspects is impermissible. Such questioning is undoubtedly an essential tool in effective law enforcement. The line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw, particularly in cases such as this where it is necessary to make fine judgments as to the effect of psychologically coercive pressures and inducements on the mind and will of an accused. But we cannot escape the demands of judging or of making the difficult appraisals inherent in determining whether constitutional rights have been violated.” Haynes v. State of Washington, 373 U.S. 503, 514, 515, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513 (1963).

Under the influence of the particular circumstances of Escobedo the court announced the rule concerning interrogations wherein a distinction was made between investigatory and accusatory phases of the investigation. For the purpose of determining when constitutional rights came into play Escobedo has been cited throughout the country by defense counsel in numberless incidents where incriminating admissions or confessions have been made by defendants. As we read and interpret Esco-bedo we do not construe it as requiring release of all defendants who make incriminating statements resulting from police interrogation. The Supreme Court, in its opinion, considered defendant’s constitutional rights based upon the particular factual circumstances found to be present in Escobedo.

“The narrow line between investigatory and accusatory questioning, * * *, is sometimes to be determined by whether or not the one questioned was treated with fundamental fairness considering all the circumstances of his questioning.

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“It is trial judges who, in the first instance must strike the necessary balance between permitting citizens to be free from criminal molestation and permitting individuals to enjoy the rights enumerated in the first ten Amendments to the Constitution. It will be a day of tragedy if any of the rights enumerated in the Bill of Rights are given such scope or meaning that the power of government to protect or enforce other constitutional rights of its citizens is rendered ineffective or the power of the government itself to insure domestic tranquility is destroyed. That is particularly true of the government that is historically a government of laws and not of men, a government dedicated in the language of the Preamble of the Constitution to ‘establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, * * *.’ ” The Meaning and Scope of Escobedo v. Illinois by Hon. Robert Van Pelt, United States District Judge, District of Nebraska, 38 F.R.D. 441, 466.

We are not satisfied that when the police presented the respondent for confrontation and possible identification by the complainant, the investigation had shifted to the accusatory stage. Thus the spontaneous statement T am sorry’, a statement most ambiguous and not in our view significantly incriminating, came at a time when its vol-untariness was not impaired by any preliminary failure to give the warnings and advice with respect to silence and right to counsel discussed in Escobedo. In State v. Miranda (1965), 98 Ariz. 18, 401 P.2d 721, 730 (decided on other grounds) the court used language with which we are in accord as follows:

“As to whether identification of a defendant in a ‘line-up’ is sufficient to focus the investigation upon a defendant depends upon all of the facts and circumstances surrounding the case. We call attention to the fact that the crime committed in the instant case occurred in the night time, and that there is always a chance of a mistake in identity under such circumstances on account of the excitement of the complaining witness, and difficulty of identity at night. Even where a complaining witness identifies a defendant in a ‘line-up,’ as in the instant case, officers may well feel that a defendant should have the right and privilege of explaining his whereabouts at the particular time which could be checked by the officers. One of the chief duties of both the sheriff’s office and the county attorney’s office is to make sure that people are not unjustly charged with crime. It is their duty to protect the innocent as well as detect the guilty.”

The entire action took only a few moments. There were no promises, threats, coercion or violence inflicted upon the defendant to cause or influence the defendant to say, “I am sorry.”

A careful reading of the majority opinion in Escobedo will demonstrate that the tests announced were predicated upon the factual circumstances obtaining in Esco-bedo. It is obvious that in the instant case the circumstances of the police interrogation are in no way comparable to those found to exist in Escobedo. It would be difficult to conceive of a case factually more remote from Escobedo than the case at bar.

Under the circumstances there can be no other determination than that the statement, “I am sorry” and the answers to the questions were voluntary and not the product of any unfair treatment by the officers. The record discloses no direct admission or confession by the defendant that he committed the crime. The complete voluntariness of defendant’s statements, as well as the totality of the circumstances, demonstrate no violation of defendant’s constitutional rights which would have the effect of destroying the fact that his statements were the product of a mind free from any compelling influence on the part of the interrogators resulting in a violation of due process. The confrontation and inquiries which occurred at the police station were “threshold” in character, were investigatory rather than accusatory, and the events and conversations in connection therewith were properly received in evidence. Commonwealth v. Lepore, 349 Mass. 121, 207 N.E.2d 26 (1965).

The sum total of the circumstances in the instant case does not develop into a constitutional deprivation of defendant’s rights.

The State presented as a witness one Richard Alfred Palmer. Mr. Palmer at the time he was called as a witness was serving sentence in Maine State Prison. Other than a few preliminary questions he refused to answer questions propounded by State’s attorney for the reason, as stated in his own words: “I refuse to answer on the grounds it might incriminate me.” During the course of a brief examination by the State the witness took advantage of his right under the Fifth Amendment thirteen times. Counsel for the defendant argues his position that to permit State’s attorney to propound thirteen questions, resulting in the refusal to answer on the grounds of self-incrimination, was highly prejudicial to the rights of the respondent. For this reason the defendant contends that the refusal of the presiding Justice to grant a mistrial was error.

Counsel for the defendant lays great stress on Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 to sustain his position that the examination of Palmer by counsel for the State, when Palmer refused to answer the questions on the ground of self-incrimination, was prejudicial to the rights of the defendant. The factual circumstances of Douglas and the instant case are not at all analogous. In Douglas the prosecutor, under the guise of cross-examination, was asking questions of witness Lloyd from an alleged confession that Lloyd had made. The form of questioning continued until the entire document had been read. The prosecutor then called three officers who identified the document as embodying a confession signed by Lloyd. This alleged confession was identified as an exhibit but never offered in evidence. It is obvious that these tactics were prejudicial to Douglas. In the instant case no such circumstances obtain.

If, for any reason, the defendant was prejudiced by the type of examination, it was cured by the presiding Justice when he in his instructions -to the jury referred to the refusal of the witness to answer on the ground of self-incrimination by saying:

“You will not, I instruct you with as much emphasis as I am capable, undertake to speculate upon what might have been his answers had he chose not to invoke the constitutionally guaranteed privilege against self-incrimination. The fact of the matter is, he did invoke such constitutional right; in doing so he was clearly within his rights. That is all there is to his testimony. You will not undertake to draw any inferences from anything he didn’t say, because I instruct you, your conclusions must be based entirely upon legally admitted evidence, and he gave no evidence beyond stating his name, where he was, and where he once resided and a particular person whom he knew. That is all he said. He gave no other evidence. The questions which were asked him were asked in a form I ruled proper because of rules of law with which I need not enter into in a discussion on this case. You will not undertake to draw any inferences from the questions. The fact of the matter is that the questions were not answered, so disabuse your minds of any inferences which you could speculate might have resulted had the witness chosen not to invoke the provisions of the Constitution guaranteeing against compulsory self-incrimination.”

See United States v. Maloney, 2d Cir., 262 F.2d 535.

“The ordering of a mistrial is within the sound discretion of the presiding justice and exceptions will lie only to a clear abuse of that discretion.” State v. Woods, 154 Me. 102, 103, 105, 144 A.2d 259.

See also State v. Norton, 151 Me. 178, 116 A.2d 635 and State v. Hamilton, 149 Me. 218, 100 A.2d 234.

It is to be noted that this objection does not raise a constitutional question.

We find no prejudicial error in the refusal to grant a mistrial.

The record shows sufficient admissible evidence to sustain the jury verdict of guilty.

The entry will be:

Exceptions overruled.

SULLIVAN,. J., sat at argument but retired before the opinion was adopted.