Bartram v. State

Moylan, J., delivered the opinion of the Court. This appeal is the culmination of a case rent by internal tension. The appellant, Marilyn Susan Bartram, convicted by a Baltimore County jury of the second-degree murder of her husband and of a related handgun offense, was a woman rent by internal tension at least during the five years of her married life. The husband and victim, Douglas MacArthur Bartram, was a man rent by internal tension apparently throughout the whole of his twenty-eight-year life.

Ironically, the masterfully thorough defense' waged on behalf of the appellant is also rent by internal tension. It consisted of an imaginative and meticulously prepared defense upon the merits; it also consists, at the present level, of four claims of constitutional error. The strategically compelled defense of suicide, on the one hand, tugged compellingly in one direction. It was marked by candor, openness and full disclosure.

The thrust of three of the four constitutional contentions, on the other hand, is in a diametrically opposite direction. Each line of defense has been well handled as a virtuoso performance; they simply fail to come together into a well-orchestrated whole. Constitutionally, the appellant objects bitterly to the admission of a brief statement made by her to a policeman, in which she revealed the existence of her husband’s mistress, Katherine Pope. Upon the merits, however, the appellant took the stand and over several hundred pages of testimony poured forth every sordid detail of her husband’s troubled sex life, central to which was the bizarre triangular relationship between the appellant, her husband and Katheriri'e Pope.

That testimony was the indispensable ¹¹⁸ predicate for the psychiatric autopsy, without which the entire defense effort had not a prayer of success. Constitutionally, the appellant objects to the use of Katherine Pope as a witness as “the fruit of the poisonous tree.” Upon the merits, however, the appellant volunteered the life story of Katherine Pope with a week-by-week account of her intimate and regular contact over a three-year period with both the appellant and her late husband. Again, such information was essential to the only available defense upon the merits. One wants to say to the defense, “Shorn of technicality, what do you really want?

Which way would you have it? Do you really want all of the background information in this case brought out or do you not? Either position is legitimate, but choose. It ill behooves you to try to have it both ways.” Constitutionally, the appellant objects to the failure of the trial judge to instruct properly on the burden of proof with respect to an intentional but hot-blooded killing in response to legally adequate provocation.

Upon the merits, however, the appellant swears that her husband’s death was suicidal and that she was not the homicidal agent, either in cold blood or in hot blood. To be sure, contradictory defenses are not impermissible in our jurisprudence. The net effect nonetheless is to reduce the constitutional arguments to the clever legalism of the debating chamber and to mute the anguished cry of outraged innocence. Even in that less emotionally charged context, however, the four constitutional issues are challenging ones.

The fourth, moreover, is not at odds with the defense upon the merits. The four contentions now before us are: 1. That a statement given by the appellant to a policeman at the Baltimore County General Hospital was erroneously admitted in evidence in contravention of Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 (1966); 2. That the police only learned of the existence of Katherine Pope through a statement taken from appellant ¹¹⁹ unconstitutionally and that her use by the State as a witness, therefore, violated “the fruit of the poisonous tree” doctrine in contravention of Wong Sun v. United States, 371 U. S. 471 , 83 S. Ct. 407 , 9 L.Ed.2d 441 (1963); 3.

That an erroneous instruction was given on the burden of proof with respect to manslaughter in contravention of Mullaney v. Wilbur, 421 U. S. 684 , 95 S. Ct. 1881 , 44 L.Ed.2d 508 (1975); and 4. That the grand jury process was abused when, following the nolle pros of a first indictment because of an arguable violation of Coblentz v. State, 164 Md. 558 , 166 A. 45 , the assistant state's attorney and one police witness summarized the State’s case before a second grand jury. The Factual Backdrop Before proceeding to a consideration of those issues, let us set the stage factually. On Monday morning, July 2,1973, at approximately 8:30 a.m., Douglas Bartram died in his bed, at his apartment 2-A at 3608 Yennar Lane in Randallstown, with two gunshot wounds to the head and a third to the chest.

Present when the police arrived, standing immediately outside the apartment, was the appellant wife. She was in her nightgown, was attended by a friend from the neighborhood and was in a distraught condition. She and her husband had lived alone at 3608 Yennar Lane since moving from Connecticut nine months earlier so that he could take a job as chief engineer for WFBR radio. From immediate surface appearances, the police had arrived at the scene of a suicide.

To place the later contentions in proper perspective, we will set out initially just the hard evidence of the corpus delicti — the corpus delicti of unlawful homicide or of suicide, as the case may be. We will factor out of our preliminary analysis any evidence dealing with motivation — homicidal motivation as the evidence was interpreted by the State; suicidal motivation as that same evidence was interpreted by the defense. Where did the case stand without any motivational embellishment, inculpatory or exculpatory? ¹²⁰ With two bullets in his brain, Douglas Bartram did not die of natural causes. The hard fact of three separate shots coupled with the careful firing of one of those shots in point-blank contact with the right temple negated any credible possibility of accident.

Douglas Bartram was the victim of either an intentional suicide or an intentional homicide. With no scintilla of speculation that any third person was present in the apartment at the time of death, the killing agent, ineluctably, was either the victim himself or his wife, the appellant. Against that spare backdrop of but two possibilities, we turn to the testimony of Dr. Russell Fisher, who performed the autopsy. The chest wound was superficial and will be more fully discussed hereinafter.

The two shots to the head were crucial and with respect to these, Dr. Fisher was able to establish an absolute sequence of firing. The first shot entered the skull at the right temple. The entrance wound itself established that the gun barrel was in direct contact with the skin at the time of firing. The bullet shattered the skull and moved, from right to left, across the very front of the brain, doing minor damage to two of the frontal lobes.

It passed essentially in front of the brain, shattered the skull again on its way out, but did not have enough force left to get through the last layer of surface skin. This bullet caused considerable bleeding as it passed through. It destroyed the entire sinus area behind the nose and mouth and caused a considerable spilling of blood. It would have caused, furthermore, a significant spurting of blood from both of those cavities.

This bullet also completely severed the optic nerve and would have caused immediate blindness. It, however, was not, and alone need not have been, fatal. We will refer to it as the temple shot. The cheek shot followed the temple shot aind produced instantaneous death.

It was fired from a distance of between three and six inches from the right cheek. It went inward and upward through the mouth and tore squarely upward and rearward through the mass of the brain. There was no bleeding along its path. It could have been followed, testified Dr. Fisher, by no more than four or five heartbeats, after ¹²¹ which all blood pressure would have ceased and all bleeding would have stopped.

From the bleeding pattern alone, it had to follow the temple shot. Dr. Fisher testified as to the effect of this second shot: “Immediate disability of the patient. In fact, immediate death. This was so terminal in timing that there was hardly any blood along the track of the bullet in the brain.

He was without blood pressure within seconds after this passage of this bullet.” The defense made two efforts to fit the sequence of head shots within the realm of suicidal possibility. The first was the theory that since the temple shot did not produce immediate death, the victim — bent on suicide — though now blind, might have fired off a second time into his own cheek. Dr. Fisher discounted this even as a remote possibility. The medically certain effect of the temple shot with the gun pressed against the skin would have been the explosive expansion of gases around the skull beneath the surface of the skin.

The shattering concussion would have produced immediate unconsciousness. Dr. Fisher testified: “There are two components to a contact gunshot wound of the skull. One is not only the explosive expansion of gases but accompanying that would be a concussive effect. It would be my judgment that, certainly, this man would be rendered temporarily unconscious by the passage of a bullet through his cranial cavity, with all the smashing effects of the gases expanding in there.” Dr. Fisher elaborated on what the exploding gases do: “[The barrel was] tight enough that when the gun discharged the gases went in instead of going out.

It wasn’t a quarter of an inch or a half an inch away but in sufficiently good contact that during the in shooting everything went inside and then in due course of time, as it expanded, blew back out the entrance wound.” ¹²² . Nor could the victim have lost consciousness, later regained it, have fumbled about for the gun though blinded, found it and then fired the cheek shot. In this regard, Dr. Fisher testified: “Without a considerable span of time between the two for him to regain consciousness and find the gun and maneuver it in some such position and, at this point, the unlikeliness pf a blinded individual aiming from a distance at himself, as opposed, if he is going to try it again, putting it up there in the first place, it is just the unlikely way for this to have occurred.” There was no appreciable interval between the two shots. A neighbor, whose bedroom adjoined that of the Bartram’s and was separated from it only by a thin plaster wall, was startled to hear two gunshots in quick succession followed by what sounded like a dull thud.

Even the testimony of the appellant herself was that she, from her kitchen, heard two loud noises in quick succession. (In her initial, uncontested conversation with the first officer on the scene, she had said that she “heard two or three noises.”) Dr. Fisher testified as to the duration of unconsciousness following such a concussion: “This would certainly be more than the effect of being hit on the chin and being knocked out in a prize fight. There is far more force expended then than one would get with a hard blow in a prize fight, so it would be my opinion that the duration would be a minute or so as an absolute minimum and maybe several minutes. The concussive effect, unconsciousness which, by definition, is part of concussion, would disable him from firing the second shot for quite some time.” Dr. Fisher went on as to the severity of the concussion: “[I]n addition to the bullet passage itself there was fracturing across the base of the skull which, I ¹²³ believe, was part and parcel of the expansile forces generated when that bullet went through or when the contact wound occurred.

This frequently fractures the skull. The fact that the skull is fractured this way is other evidence of the severity of expansile forces that went on in that head when the shot was fired, that it would indeed separate fragments of the skull fractured. This is a powerful gun.” He was probed, in cross-examination, as to how rapidly unconsciousness would set in: “Q. You indicated that the concussive force would render the individual unconscious, you felt? A. I think so, yes.

The contact wound of this kind, yes. Q. How soon would it render them unconscious? A. How soon? Q. Yes.

A. Instantly. Q. Instantaneously? A. As instantaneously as a knockout blow of any other kind. Q. Do you say that it is absolutely impossible for the person to have sustained this temple shot and remain conscious for even a slight period of time?

A. This is my opinion. Q. You even rule out the possibility of it happening? A. Well, yes. I just can’t imagine a contact gunshot wound of the force of this .38 caliber weapon not producing temporary unconsciousness.

Q. Onset, immediately? A. Onset, immediately, yes. By concussion, associated with the impact. There is, essentially, instantaneous interruption in brain function ¹²⁴ because the • tissue is so badly jostled around, shaken up.

Q. You say, essentially instantaneous. Is that different from instantaneous? A. No, sir. Q. So, you are saying it is absolutely instantaneous?

A. That would be my opinion.” The second theory of possible suicide put forward by the defense accepted the rapid firing sequence, but posited that the second cheek shot could have been an unconscious but reflex action as the firing hand fell away from the temple shot. Dr. Fisher discounted this as a possibility: “... I don’t believe, after the temple shot, as the arm is falling away, he is going to be capable of pulling a trigger.” Spirited cross-examination only strengthened the testimony: “Q. (By Mr. Barnhouse) Dr. Fisher, you indicated earlier something about a prize fighter, analogizing this to a prize fighter.

Aren’t there times when a prize fighter will receive a blow to the head which, in fact, knocks him out but he is sort of swinging on the way down? It does not just knock him out immediately. Doesn’t that happen? A. I suppose that if a person is swinging and is hit and is falling he is going to continue to swing, if that is what you mean.

I certainly would not put that in the same context as the autory motion of pulling the trigger on this gun which takes a lot of force to pull. Q. Well, I believe it is a straight pull, though, is it not? A. Yes, but it is a strong pull. Q. And, a strong man pulls a strong gun?

A. Sure. Q. Now, Doctor, what you are saying about the ¹²⁵ prize fighter being or already starting to swing, he would possibly continue through. What you are saying is, if I understand you correctly, that when the mind is made up and the action is underway it might carry through even after the blow. Is that right?

A. A given motion, I would think, would continue for the very reason that it is the inertia of the body, as its swinging continues, but this is entirely different from a set of events in which one, after one motion which produces a coma, then has to go through this separate and distinct motion including the firing of that gun. The time element is such that I just can’t buy this.” The ballistics evidence further derogated from the speculative reflex firing. It was established that the .38 revolver in this case had an extremely heavy trigger pull. Dr. Fisher referred to it: “Q. Dr. Fisher, you saw the poundage test conducted in the Courtroom and you heard the results of it.

Could this .38 caliber Smith and Wesson with a pull as required been fired after shot number one that you have described, have been fired in a reflex manner? A. No, I don’t think so. Having fired the gun I would say no.” Additional ballistics evidence established that the trigger mechanism was defective. Instead of springing back into forward position automatically, it had to be pushed forward manually before the next shot could be fired.

On the basis of the postmortem examination of the two head wounds alone, the evidence was more than legally sufficient to support a finding, beyond a reasonable doubt, that the manner of death was homicidal rather than suicidal. Dr. Fisher was asked as to the possibility of suicide. He replied: “It would be my opinion that the possibility of ¹²⁶ this being suicide is exceedingly remote. I have never seen any such case.” He further defined his use of the phrase “exceedingly remote”: “It is difficult to assign percentages to things but, ordinarily, when I say something is exceedingly remote I think of it in terms of one in a thousand or one in a hundred thousand.” Dr. Fisher was asked further as to “the probability of homicide.” He replied: “Since I do not believe that this was self-inflicted I think it is highly probable that this was inflicted by another person, which makes it homicide in this set of circumstances.” He further defined his use of the phrase “highly probable”: “When I say it is highly improbable I am inclined to like the 99 and 44/100 per cent or some such figure.” The physical evidence went on to tilt even more decidedly against suicide and in favor of homicide.

The third shot, the one to the chest, could not have been fired by the victim. The wound itself was superficial. It entered the chest at a shallow angle from between the nipples and traveled under the skin but outside the rib cage along the left side of the body. It exited under the left armpit and entered the mattress at precisely that point, indicating both that the body was lying on its left side with the inside of the armpit down against the mattress when the shot was fired and further that there was no significant movement of the body after that shot was fired.

The end of the gun barrel had been at a distance of 18" to 21" from the body when the gun went off. To have shot himself, the victim would have to have lain down on his left side, taken the gun in his right hand, held it down toward his waist and up in the air as high as he could reach and then fired it by pushing the trigger away from him with his thumb. The chest shot, moreover, could not fit into any credible suicidal firing sequence. ¹²⁷ The appellant, lest she tacitly acknowledge guilt, had to take the stand to explain that shot. She testified that she was in the kitchen preparing hot chocolate for her husband when she heard two noises that sounded like an automobile backfiring.

She looked out the window and saw nothing. She finished making the hot chocolate and took it into the bedroom. She walked up beside the bed, with her husband’s back toward her, and placed the hot chocolate on the nightstand. Only then did she look over and see her husband lying in a pool of blood.

She walked around to the other side of the bed, toward which he was facing. She heard a gurgling sound and did not know if he was alive or dead. She was afraid that he was suffering and in pain. She noticed the gun in his hand.

She removed it and placed it down on the bed. After removing a sock from his hand (to be more fully discussed hereinafter), she picked up the gun for a second time. It somehow accidentally went off, hitting her husband in the chest. She then replaced the gun on the bed near where it had been initially.

This version of the gun going off accidentally must be viewed in the light of the ballistics evidence that the trigger had to be moved forward manually to the firing position before it could go off and with the fact that it took a twelve to thirteen pound trigger pull to discharge the weapon. When the police discovered the body, the gun was lying beneath the right hand of the victim. Again, a troublesome physical fact had to be reconciled with the post-suicidal, accidental version of the third shot. The appellant testified that after accidentally shooting her husband and then placing the gun down on the bed (in the pool of blood), she picked up her husband’s right arm to feel for his pulse.

When she had finished, she placed his arm back on the bed and the right hand apparently came to rest on top of the gun. The appellant, for all of her apparent solicitude for the husband who she professedly believed might still be alive and for all of her apparent candor, did not tell the police who arrived at the scene to tender help or the ambulance attendants or her friends or the medical personnel about the ¹²⁸ accidental shooting. For all that appears, that version of the chest shot never saw the light of day until it became known that Dr. Fisher had concluded that the chest shot could not have been fired by the victim. Another physical fact, unexplained, would not in retrospect have caused the appellant much grief.

The explanation, however, was devastating. No fingerprints, of either the appellant or her husband, were found upon the gun. The laboratory technician expained that this was not unexpected because the gun was found in a pool of blood. Swabbings were taken of the right hand of the victim and a neutron activation analysis could not establish that he had fired the gun.

Since the neutron activation analysis was also inconclusive even as to swabbings taken from policemen who did later test fire the gun, the finding was completely neutral. The version of the death scene testified to by the appellant did gratuitously provide a ready explanation for a circumstance which in retrospect needed no explanation. She testified that when she first saw her husband’s body with the gun in the right hand, one of his blue socks was covering the hand. Her first act was to remove the gun from the hand and then to remove the sock from the hand.

She used the sock to mop blood from her husband’s brow and then dropped it among the bedclothes. Why she did not take her husband’s pulse when she was holding onto his hand and arm on that occasion (as opposed to later) was not explained. The bizarre sequence of actions could, of course, have been attributable to an unsuspecting wife’s state of shock. It could also, as the individually innocuous fragments slowly come together into a meaningful mosaic, be attributable to the necessity of holding the taking of the pulse in reserve to account for getting the right hand of the victim back on top of the gun after the allegedly accidental third shot had been fired.

Strangely, when all of the garments and bedclothing were carefully taken to the morgue with the body and the gun, the bloody blue sock was missing and was never accounted for. Every other item was meticulously catalogued and examined. Strangely also, the appellant never mentioned the ¹²⁹ presence of the sock or her actions with respect thereto to the policemen, the ambulance driver, the medical personnel or her friends. For all that appears, this information first saw the light of day at the appellant’s trial.

The blue sock apparently had significance for the appellant, however. When her furniture was moved back to Connecticut in late September, 1973, some three months after her husband’s death, the appellant noticed the unbloodied mate to the missing blue sock. Although the appellant was not charged with her husband’s murder until April 5, 1974, another six months later, the mate to the missing blue sock was carefully preserved as a defense exhibit. With only two available hypotheses, into which does the fact of a blue sock fit more neatly and more logically?

Why, it must be asked, would a man bent on suicide wish to keep his fingerprints off the suicide weapon and powder residue off his hand when the inescapable presence of the gun and the sock would explain both evidentiary absences? On the other hand, would not a murderess staging an apparent suicide have a definite need to keep her fingerprints off the gun and powder residue off her hands and a concomitant need to explain the absence of her husband’s fingerprints from the gun and the absence of powder residue from his hands? The testimony about the sock was, in its net effect, a powerful boomerang. Yet a third physical fact complicated the suicide plus accidental shooting theory.

When the body was found by the police, a pillow was covering the chest. The pillow completely covered the entrance wound of the chest shot and even obscured the cheek wound. There was no bullet hole in the pillow or its case. Dr. Fisher explained that the chest shot could not have been fired with the pillow in that position and that the pillow had to be placed where it was after the chest shot had been fired.

The pillow was squarely up against the front of the victim’s body, extending from the nose to the stomach and obscuring from view all but the temple wound. For the victim’s right hand to have been lying atop the gun, as it was, it was necessary for the entire right arm to be supported by the central mass of the pillow. ¹³⁰ The appellant offered little by way of explanation here. She. never mentioned the presence of any pillows or the moving by her of any pillows to police, friends or medical attendants. Even in detailing her every movement during direct examination, she never alluded to the central position of this pillow covering the entire front of her husband’s body.

On cross-examination, she could only say: “Q. When you went over to your husband, you walked around the bed, was there a pillow in front of his chest? A. There could have been.” At yet another point in the cross-examination: “Q. When you fired the chest shot, accidentally, would you describe how he was lying? A. He was on his side, kind of on an angle. Q. On an angle?

A. Yes. Q. And, did he have any of the pillows around him? Where would they have been? A. They were around him.

Q. Around him? A. Yes. Q. Was there one against his chest? A. I could have moved it when I went to take his pulse.

Q. I’m sorry, I didn’t hear your answer. A. I could have moved the pillow when I went to take his pulse.” If the pillow had been in front of her husband’s chest when she found him, moving it to take his pulse could not account for the unobstructed chest shot since the pulse taking followed the second picking up of the gun, the allegedly accidental shooting and the final putting down of the gun. If, on the other hand, the chest was unobstructed when the appellant found her husband, no pillow had to be moved to take his pulse. The appellant testified to having ¹³¹ seen both her husband’s right hand and the gun as she first approached the body.

To have moved the pillow into place after the chest shot, moreover, could not have been an inadvertent and subconscious action. It was placed flat against the front of the victim’s body covering everything from his face to his stomach. After the pillow was in place, the victim’s right arm had to be lifted and placed on top of it. Under the alternative hypothesis, however, the placing of the pillow made some sense to a murderess staging an apparent suicide.

The pillow, by hiding all but the temple wound, made a first glimpse of the body appear more traditionally suicidal (for whatever warped sense of momentary advantage that might have conferred). More significantly, the pillow made possible the positioning of the right arm so that the right hand rested squarely over the apparent suicide weapon as it lay in the pool of blood. It would not yet have been anticipated that the chest shot would somehow have to be explained as a post-suicidal accident, with the pillow as a mute impediment to that explanation. The appellant attributed her failure of recall about the pillows to her state of shock.

She also attributed her failure to tell anyone about the blue sock to her state of shock. She also attributed her failure to summon immediate medical aid for the husband who she believed might still be alive to her state of shock. Yet in other ways, both her recall and her deductive powers were contrastingly sharp. During cross-examination, the appellant was grilled as to why she had not told the police about the accidental shooting.

She replied: “I knew he had shot himself twice but I don’t know why the gun went off but I was worried that maybe that shot might have killed him.” The prosecutor remembered that the appellant had testified that she had not seen any bullet holes or entrance wounds. ¹³² Thinking he had caught the appellant in a fatal slip, he pounced: “A few moments ago you testified that although you didn’t tell Officer Walbrecher about your shot, that you knew he had shot himself twice. How did you know he had shot himself twice?” Neither her recollection nor her reasoning power on that occasion suffered from shock: “I heard two noises. When I saw him and I realized the gun was in his hand I knew where the two noises came from.” Another significant factor was both the absence and the presence of blood on the appellant and her clothing. She testified to having picked up the revolver from where it lay in a pool of blood, to having picked up her husband’s hand from where it also lay in the pool of blood in order to take his pulse, to having wiped blood from the forehead, to having replaced the gun to where it came to rest in that pool of blood and to having replaced her husband’s hand to where it came to final rest in that same pool of blood.

Yet in all of the observations made of the appellant by her friends and by the police, including the swabbing of her hand for powder residue, no bloodstains were apparently observed upon her hands. Her minute-by-minute account of her activities did not include a washing of her hands. Under her testimonial version of her activities upon the finding of the body, the absence of blood from her hands was incredible. Under the alternative hypothesis, however, the absence of blood from the hands logically fits the picture of a staged apparent suicide.

The firing of the murder weapon itself would not have smeared her hands with blood. Only the placing of the gun under the victim’s right hand might have done so and that undesired evidence would easily have been washed away. In the uncontested and clearly non-custodial version of her husband’s apparent suicide given to Officer Ditty immediately upon his arrival at the death scene, the absence of blood smears from the appellant’s hands was a ¹³³ fact compatible with the simple sighting of the apparent suicide and the immediate leaving of the room. It would only have become incompatible when the testimonial version had to be expanded to encompass 1) the picking up of the gun, 2) the picking up of the right hand, 3) the removal of the blue sock from the hand, 4) the wiping of blood from the forehead with the blue sock, 5) the second picking up of the gun and the “accidental” firing thereof, 6) the final placing down of the gun, 7) the second lifting of the right arm, 8) the taking of the right pulse and 9) the final placing down of the right arm — each action squarely in a quarter of the bed bathed in blood.

Even more telling than that absence of blood was the presence of blood in a very different respect. An expert in serology (the study of blood) from the F.B.I. laboratory examined, inter alia, the housecoat worn by the appellant on the morning of her husband’s death. A Benzidene Test (sensitive enough to detect blood in the amount of one part in 300,000 parts) showed positive for the possible presence of blood. A Takayama Test then confirmed that human blood was present on the robe, but in amounts too small for grouping.

There were small flecks or “spatters of human blood”. Defense counsel, in referring to the exhibit, characterized the flecks as “all these little spots”. The flecks, moreover, were found in only two places — on the right arm of the robe and on the upper right front of the robe. Dr. Fisher testified as to the possibility of blood spatters from the various gunshot wounds.

The arm that held the gun for the chest wound would not have been spattered thereby. There were no major blood vessels involved and no significant bleeding — let alone spurting. The cheek wound which caused immediate death involved no significant bleeding. With respect to the temple wound, however, Dr. Fisher testified: “It would be my belief that some small spatters of blood might very well be blown three or four feet from the face of the deceased out into the air as a result of blood and foam blowing through his nose _ as he breathes.” ¹³⁴ The outstretched arm that held the gun for the temple shot would almost inevitably have been thus spattered.

So too would the outstretched arm that held the gun for the quickly ensuing cheek shot: “Q. (By Mr. Kleid) Dr. Fisher, how long would blood spurt from the body through the nose and mouth, as you have indicated? How long would this occur? MR.

BARNHOUSE: After what? Q. (By Mr. Kleid) After the gunshot wound number one that you have labeled was fired? A. It might have continued for a long time.” By the time, however, following the fatal cheek shot, that a person in a kitchen could have heard the shots, could have looked out the window, could have finished making hot chocolate, could have poured it into a cup, could have walked to the bedroom, could have placed the hot chocolate on a nightstand on one side of the bed and could have then walked around to the other side of the bed, the time for the spurting or spattering of blood had long passed: “Q. If the shot labeled number two were fired within a very, very short time thereafter, how long would it have continued?

A. Well, as soon as shot number two is fired, things are over. I should say in less than half a minute, very quickly. Considerably less than half a minute because there is no bleeding in that wound itself. Q. Well, in considerably less, can you put a time frame on it?

A. I would say that we probably ought to talk about four or five heartbeats, which is a few seconds.” The suicide plus accidental shooting theory made no effort to explain the blood flecks or spatters. The murder hypothesis, however, would indicate the likely presence of ¹³⁵ blood spattering on the outstretched arm that fired the murder weapon and on the upper right chest behind it. A final factor militating persuasively toward homicide rather than suicide is that even the self-serving testimony of the appellant herself revealed a bizarre inconsistency between her verbal protestations and her actions. Somewhere between 30 and 45 crucial minutes were allowed to slip away before medical aid was summoned for a critically wounded man who the appellant thought might still be alive.

Officer Ditty, who actually beat the ambulance to the scene, received his trouble call at approximately 9 o’clock. The shooting, at the latest, was at about 8:15 to 8:20 a.m. Although no one could pinpoint time with any precision, outer limits were clearly discernible. The neighbor who heard the shots at first placed them at 8 o’clock or earlier.

She knew what time she normally got up (at 7:30 or 8:00) and knew, furthermore, that she had on this morning to visit her husband in the hospital prior to 9 o’clock. Admitting that she did not specifically note the time when she heard the shots and agreeing with the pressing cross-examination as far as she could, she still would not take the occurrence significantly beyond 8 a.m. (10 to 15 minutes at most). The appellant herself was certain that she got up when her alarm went off at precisely 8:10 a.m.

She had already been up earlier that morning and had been to the bathroom. Upon arising at 8:10 a.m., she simply put on her robe and went immediately to the kitchen. She drank a glass of orange juce and put a small amount of water on the stove to boil, enough to make a cup or so of hot chocolate. By the time that water had come to boil, she had heard the noises which turned out to be gunshots.

She testified to a number of actions on her part before calling her friend Mrs. Maureen Rose. Mrs. Rose testified to having received that call at approximately 8:30 a.m. Both before and after that call, precious time was inexplicably lost if one believes the appellant’s version that her husband lay critically wounded but, in her judgment, not necessarily dead. We will juxtapose the appellant’s statements as to her beliefs upon discovering her husband’s body with her actions ¹³⁶ in response to those beliefs.

The appellant testified that when she first looked at her husband bleeding upon the bed, she heard noises emanating from him. In testimony, she characterized the noises as gurgling sounds. In an early statement to the police, she had referred to “moans”. She testified that she was afraid that he was in pain and that she could not bear to see him suffer.

She once stated, “I knew he was in pain.” She allegedly mopped the blood from his brow with the blue sock in order to relieve his suffering. She took his pulse. When she finally got together with Mrs. Rose, the initial efforts were to contact a doctor and not the morgue. When the police arrived, she, according to Mrs. Rose, was anxiously inquiring as to whether her husband was alive or dead.

She received no answer at that time. When it was recommended that she herself be taken to a hospital, she tried to insist on going to the same hospital to which her husband was being taken so she could keep current on his condition. She testified that as she first left her apartment that morning “my biggest concern was in helping Doug.” She testified unequivocally that she never knew her husband was dead until the police so informed her at the Baltimore County General Hospital. Throughout the trial, the appellant insisted that she loved her husband deeply notwithstanding their troubled marital life.

She was still devotedly wearing his wedding ring at the trial. That testimony contrasts strangely with her actions upon finding him lying wounded. With respect to those actions, it is to be noted initially that the appellant did not so cringe away at the sight of blood as to be paralyzed into inaction. She was capable of removing the gun from under her husband’s hand, of taking the blue sock off of his hand, of mopping the blood from his brow as he lay in apparent pain, of picking up the gun yet a second time, of replacing the gun and then taking her husband’s pulse after she had accidentally shot him and then of replacing his arm upon the bed.

Yet at no time did she scream or seek immediate help from her neighbors there in the same apartment building. At no time did she try to communicate with her husband, ¹³⁷ “Doug, Doug, can you hear me?” At no time did she pick up the phone to call for an ambulance or for the police. Her only call was to her friend Maureen Rose, who lived a block away. She did not, on the telephone, tell Maureen Rose what happened.

Mrs. Rose testified that the appellant “said, very quietly, Maureen, come quick, hurry.” Mrs. Rose, in turn, put on her robe, put her coat on over top of that, grabbed her son and his breakfast and drove her car to the appellant’s apartment. The appellant was waiting for her outside. The appellant, “very quietly said, he shot himself.” The appellant passively got into the car with Mrs. Rose and drove to Mrs. Rose’s apartment. She did not insist that they go in and render immediate aid to a man whose life might then have been ebbing away with each passing second.

She did not tell Mrs. Rose about the “accidental” third shot, about removing the sock from her husband’s hand or about taking his pulse. When they got to Mrs. Rose’s apartment, Mrs. Rose attempted to contact by telephone Dr. Ellin, the appellant’s physician. When they had trouble reaching him, they had an operator break in on the line. Dr. Ellin was not informed about the accidental third shot or about the taking of the pulse.

He instructed Mrs. Rose and the appellant to return to the apartment and indicated that he would call an ambulance and call the police. Mrs. Rose and the appellant were back in front of the apartment, but not inside, when Officer Ditty arrived. He was not informed by the appellant about the accidental third shot or about the pulse or about anything else that might have been of medical significance. When the ambulance attendants arrived, the appellant did not pass on to them any medically relevant information.

Nor did she do so directly or indirectly after being taken to the Baltimore County General Hospital later that morning. Her actions were totally inconsistent with those of a concerned wife who believed that her husband might still be alive and could be saved if given the benefit of immediate emergency treatment. The appellant’s actions, unlike her words, were those of one who knew full well that her husband was dead. There ¹³⁸ was no sense of emergency in terms of providing or summoning instantaneous medical attention.

There was no effort to pass on critical information to the medical people when they did arrive. Thirty to 45 crucial minutes were inexplicably wasted away. Before any of the contested motivational embellishment, inculpatory or exculpatory, intrudes into the case, the hard facts surrounding the corpus delicti compellingly support the judgment which Dr. Fisher was able to reach upon but a fraction of those hard facts: “It would be my opinion that the possibility of this being suicide is exceedingly remote. I have never seen any such case.

It is difficult to assign percentages to things but, ordinarily, when I say something is exceedingly remote I think of it in terms of one in a thousand or one in a hundred thousand.” This was the real case that was actually tried in front of the jury. Only against this backdrop of actuality do the constitutional issues, which in the abstract of brief and argument loom large, shrink into proper proportion. Such fringe issues as whether the appellant had or did not have some motive for killing her husband and whether Douglas Bartram had or did not have some motive for killing himself pale against the hard scientific reality that Douglas Bartram did not kill himself, for the simple reason that he could not have killed himself in the manner required by the physical evidence of his death. With this perspective of what the true battle was about at the trial level, we turn to the more rarified appellate issues. 1.

The Miranda Issue The appellant’s first claim of constitutional error is that the trial court erroneously failed to suppress an oral statement given by the appellant to Detective Robert D. Walbrecher. The appellant claims that she was not given the warnings guaranteed her by Miranda v. Arizona, 384 U. S. ¹³⁹ 436, 86 S. Ct. 1602 , 16 L.Ed.2d 694 (1966). Before dealing with the merits of the claim, it will be helpful to narrow the focus in two regards. The various responses which the appellant gave to different members of the police force on the morning and early afternoon of July 2, 1973, congeal into four distinct phases: (1) When Officer Robert Ditty responded to the trouble scene at shortly after 9 a.m. on July 2, he received several bits of information from the appellant as she directed him into the apartment where her husband lay.

After discovering the body, Officer Ditty received a very brief and cursory comment or two from the appellant as she was being ministered to by her friend Mrs. Rose in Mrs. Rose’s apartment. There was no suggestion by the defense that Miranda v. Arizona was in any way implicated or violated in this brief, on-the-scene confrontation. Indeed, nothing was said by the appellant remotely damaging enough to call for an objection by her. This phase is not before us.

(2) When the appellant was taken to the Baltimore County General Hospital, Detective Robert Welbrecher was initially in attendance. While she was in a cubicle in the emergency room, she gave orally to Detective Walbrecher her version of her husband’s apparent suicide. This statement was objected to and was held to be admissible. It is the sole basis for the present contention.

(3) As evidence began to accumulate and as suspicion began to focus upon the appellant, Detectives Todd and Wise relieved Detective Walbrecher and commenced a more formal interrogation of the appellant. This began at the Baltimore County General Hospital. It was subsequently adjourned to ... (4) The Garrison Forest Police Station where Detectives Todd and Wise continued their more formal interrogation of the appellant and ultimately reduced the statement she gave to writing.

This formal interrogation by Detectives Todd and Wise both in its Baltimore County General Hospital stage and in its Garrison Forest Police Station stage was ruled to be custodial in nature and therefore in violation of Miranda ¹⁴⁰ v. Arizona. The statement forthcoming from this interrogation was suppressed and is not before us on the present issue. As we narrow our focus to the oral statement made to Detective Walbrecher by the appellant shortly after her arrival at the Baltimore County General Hospital, it is also necessary for us to focus upon what ruling is now being subjected to our appellate review. The appellant filed a pretrial motion to suppress, inter alia, this statement.

A full hearing was conducted before Judge Kenneth C. Proctor on November 22, 1974, at the conclusion of which he ruled this statement to have been admissible. When the case came on for trial before Judge H. Kemp MacDaniel on April 2, 1975, however, the appellant formally moved to renew the motion to suppress the statement and to have Judge MacDaniel conduct his own hearing thereon and to make his own ruling with respect thereto. Judge MacDaniel granted the defense motion and conducted a full hearing on the question, at the conclusion of which he also ruled the statement to be admissible. In a situation such as this when a defendant obtains a full de novo hearing on a suppression question, we will confine our review to the de novo ruling.

Even had Judge Proctor committed some error at the initial hearing (we are not suggesting that such was remotely the case), that error would be rendered moot by the granting of the de novo hearing. The prior ruling was in effect wiped out and the critical determination that counted in the case was that made at the relitigation of the suppression question. We look only to it. With the ruling that is under review now fixed in mind, we will scrupulously confine our review to the evidence offered Judge MacDaniel so that he could make his ruling.

In appellate briefs, both appellant and appellee have ranged far and wide in offering upon this question both testimony that was produced before Judge Proctor at the initial hearing and testimony which came in before Judge MacDaniel either upon the merits or upon other issues after he had made his ¹⁴¹ ruling on this particular issue. We deliberately factor out all such testimony for present purposes. As Judge Powers recently and carefully pointed out for this Court in Braun v. Ford Motor Company, 32 Md. App. 545 , 363 A. 2d 562 (1976): “We know of no principle or practice under which a judgment of a trial court may be reversed or modified on appeal except for prejudicial error committed by the trial judge. It is a misuse of language to label as error any act or failure to act by a party, an attorney, a witness, a juror, or by anyone else other than the judge.

In other words, error in a trial court may be committed only by a judge, and only when he rules, or, in rare instances, fails to rule, on a question raised before him in the course of a trial, or in pre-trial or post-trial proceedings. Appellate courts look only to the rulings made by a trial judge, or to his failure to act when action was required, to find reversible error.” In keeping with that wise, though oft-neglected, admonition, it follows that Judge MacDaniel could not have committed error on April 2, 1975, upon the basis of testimony offered before some other judge four months earlier. Nor could he have committed error on April 2, 1975, on the basis of testimony that had not yet been given and would not be given until April 3, 4, 7, 8, 9, 10 or 11. The only witness who testified before Judge MacDaniel on this limited question was the appellant herself and he was able to make his judgment upon the basis of that testimony alone.

Upon our own constitutionally mandated, independent judgment of this mixed question of law and fact, we conclude, as did Judge MacDaniel, that no error was committed in admitting the oral statement given to Detective Walbrecher in evidence. We further hold, by way of deliberately considered alternative holding, that even if error were deemed to have occurred, such error would be harmless beyond a reasonable doubt. ¹⁴² A. Miranda Was Not Violated Because Miranda Did Not Apply. At issue here is not the question of police compliance with Miranda , but rather the threshold question of Miranda’s applicability. Before Miranda will apply, it is necessary that the statement in issue be one that was made in response to police interrogation and it is further necessary that the interrogation be conducted in custodial surroundings.

It is the element of custody that we find lacking in this case. As we made very clear in Cummings v. State, 21 Md. App. 361, 364, 341 A. 2d 294 : “Miranda, in precise terms, was aimed not at self-incrimination generally (even in response to police interrogation) but at compelled self-incrimination — the inherent coercion of the custodial, incommunicado, third-degree questioning process. Its holding was set out at 384 U. S. 444 : ‘Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ (Emphasis supplied) A scanning of Miranda makes its thrust preeminently clear. ‘The constitutional issue we decided in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his ¹⁴³ freedom of action in any significant way.

In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world.’ Ibid., at 384 U. S. 445 .” It is the inherent coercion of the custodial surroundings that supplies the compulsion element of compelled self-incrimination. “The constitutional distillate of Miranda is that self-incrimination flowing from a custodial interrogation is, ipso facto, compelled self-incrimination because of the inherent coercion — the inherent compulsion — of the custodial interrogation environment. In the custodial interrogation situation, therefore, the constitutionally damning element of compulsion can only be extirpated by the elaborate prophylactic process of warning and waiver prescribed by Miranda as the required compulsion antidote. Absent the compulsion, there is no need for the antidote.” Cummings v. State, supra, at 27 Md. App. 366 -367. With custody therefore being the criterion, we turn to the facts surrounding the statement now in issue.

When Officer Ditty first arrived at the appellant’s apartment, he discovered Douglas Bartram’s body and then, out of solicitude for the appellant, would not let her go into the apartment. Officer Ditty asked Mrs. Rose if she could take the appellant somewhere and Mrs. Rose, in response, took the appellant to her apartment. When Officer Ditty shortly thereafter came to Mrs. Rose’s apartment, Officer Ditty recommended that the appellant go to the hospital. This was in at least partial response to Mrs. Rose’s suggestion that the appellant had a problem with high cholesterol and with pains in the chest and was terribly nervous and that “it might be best if she go to the hospital and have them check her over.” The police did not take the appellant to the hospital; she was taken there on a stretcher by the ¹⁴⁴ ambulance drivers in the ambulance.

She was there placed in a small cubicle in the emergency room, having arrived there at approximately 9:30 a.m. She was subsequently joined there by Officer Walbrecher. The ambulance attendants were in the room when Officer Walbrecher arrived but left shortly thereafter. Even according to the appellant, Officer Walbrecher’s inquiry was neither accusatorial in tone nor in focus: “Q. What if anything did Officer Walbrecher say to you at that time?

A. He asked me to tell him what had happened.” The appellant told Officer Walbrecher what had happened and the entire interchange lasted, according to her testimony, “about five minutes.” A doctor then came into the room and asked the appellant whether she was injured. Officer Walbrecher left the room and stood outside. The doctor informed the appellant that her own physician, Dr. Garber, had been notified and that the hospital was waiting for Dr. Garber to give a prescription. Although the appellant indicated that she wanted to leave, the doctor told her just to “sit back and relax.” It was only after the doctor left that Officer Walbrecher returned to the room.

He had one further conversation with the appellant which lasted “at least as long as the first.” At one time the appellant had asked Officer Walbrecher if she could leave the hospital and he made the statement to her “that they had to wait for the doctor to release me.” Officer Walbrecher then went outside the room again. This concluded that phase of conversation now under scrutiny for admissibility purposes. The only other shred of evidence on this question was the actual report made by Officer Walbrecher, which was offered by the appellant. The only significance the report had was that it classified the death of Douglas Bartram as a “suspicious death.” The appellant’s attempt to argue from this characterization that the investigation had begun to focus upon her is totally misplaced since the classification of “suspicious death” would apply to an apparent suicide just as surely as it would apply to an apparent homicide.

The ¹⁴⁵ first officers upon the scene had observed simply the bullet hole in the temple. An apparent suicide called for investigation. Upon this evidence, Judge MacDaniel made the following ruling: “I completely agree with Judge Proctor’s determination in this issue. The evidence, as presented to me does not convince this Court — the police had nothing to do with your client going to the hospital.

They did not insist on taking her and did not say that she had to go to the hospital. She went there because there was a suspicion of a heart condition. It was recommended by her friend and she went to that hospital. The police, under normal circumstances, when a death has happened — there is nothing to indicate that she was under any suspicion or anything of that nature at that time.

All they were trying to do was gain information for their report. She was not placed in a situation where she was told that she could not leave. That came from her own testimony. She said that she asked the police officer if she could leave and she said that he said it was up to her doctor, which indicates that she was free to leave if her doctor said so.

Whether she wanted to wait for the doctor was her decision. There was no restraint on her whatsoever. There was no pressure put on her. She was not in surroundings where you could say she was under an investigation or that she was a suspect or anything of that nature.

I think this case is very distinguishable from the cases that you quoted, and under all these circumstances I cannot see how your client was under any impression that she was being forced to do anything, at that particular time, by the police or under any incommunicado situation or not in surroundings produced by police. It had not yet reached that crucial stage where she was entitled to ¹⁴⁶ be warned and entitled to have an attorney present. I therefore overrule your motion, sir.” In affirming Judge MacDaniel’s judgment that there was no custody such as to engage the gears of Miranda , we find the facts in the present case remarkably parallel to those in Cummings v. State. We there set out (with extensive citations) a number of the factors that bear on the issue of custody.

(1) The Place of Interrogation “Although the place of interrogation is not the conclusive or sole factor to be considered in determining the fact of custody, it is a vital factor. The consensus of American case law is that the questioning of a suspect who is confined in a hospital but who is not under arrest is not a custodial interrogation within the contemplation of Miranda.” Cummings v. State, 27 Md. App. 369 -370. See also Tillery v. State, 3 Md. App. 142, 146-147 , 238 A. 2d 125, 127-128 , where we held that the absence of Miranda warnings in a hospital interrogation was immaterial because the interrogation was non-custodial. In the present case, the conversation of Officer Walbrecher with the appellant was in the hospital cubicle to which she had been taken for treatment by the ambulance drivers, at the suggestion of her friend, and where she was awaiting a prescription from her personal doctor.

(2) The Time of Interrogation “Another factor that bears upon the question of custody is whether the interview is conducted during normal business hours or is conducted at an odd hour of the night.” Cummings v. State, 27 Md. App. 372 . The hospital interview in the present case occurred between 9:30 a.m. and 10:30 a.m. on a Monday. Although this is but a peripheral factor, we feel as we did in Cummings: “This fact, though not itself conclusive, helps tilt ¹⁴⁷ the interview in question toward the non-custodial side of the spectrum.” 27 Md. App. at 373 . (3) Persons Present During Interrogation “Miranda stresses the coercion inherent in being ‘isolated,’ held ‘incommunicado,’ and being ‘cut off froip the outside world.’ 384 U. S. at 445 .

It follows that the presence of ’friends or neutrals at an interview is a fact of some relevance. 384 U. S. at 461 , 478 n. 46. Miranda speaks of a suspect being ‘surrounded by antagonistic forces.’ 384 U. S. at 461 .” Cummings v. State, 27 Md. App. 373 . In the present case, first ambulance attendants, then a doctor and then a nurse were freely allowed in and out of the room and, indeed, Officer Walbrecher would leave the room whenever they came in. U) The Indicia of Form al Arrest “The existence of physical restraint has almost invariably led to a finding of custody.

Conversely, the absence of physical restraint tends to indicate non-custody.” Cummings v. State, 27 Md. App. 374 -375. In the present case, Officer Walbrecher did not exercise any police power so as to indicate any legal restraint on the appellant. The only indication of any type of restraint upon the appellant was the advice to her that she should not get up and leave until the doctor told her that she might do so. Indeed, the doctor at Baltimore County General Hospital was waiting for the prescription to come through from the appellant’s personal doctor. “It has been held in a number of cases that the presence or absence of fingerprinting, photographing and other booking procedures have a bearing on the question of custody.” Cummings v. State, 27 Md. App. 375 . ¹⁴⁸ There was no fingerprinting, photographing or other booking procedure directed toward the appellant either prior to or during her conversation with Officer Walbrecher. “It has similarly been held that telling a suspect that he is under arrest indicates custody for Miranda purposes.. ..

Conversely, the fact that an officer does not tell a suspect that he is under arrest is a circumstance tending to negate custody.” Cummings v. State, 27 Md. App. 375 . The appellant was at no time told or led to believe that she was under arrest. (5) The Length and Mood of the Interrogation “The cases hold that the brevity of an interrogation, the friendly demeanor of the officer and the short and neutral nature of the inquiries all tend to negate the notion of custody.” Cummings v. State, 27 Md. App. 376 -377. The mood of Officer Walbrecher was at all times friendly and solicitous.

The total interview consumed somewhere between 10 and 15 minutes — “about 5 minutes” before one of the doctors interrupted the interview and then a resumption thereof “at least as long as the first.” The tone, moreover, was not accusatorial in nature. A policeman, investigating an apparent suicide, was seeking to learn from an apparently bereaved wife the circumstances surrounding her husband’s apparent suicide. (6) Lack of Arrest After Interrogation “It is almost universally the law that where a suspect is not arrested and is allowed to remain free following the interview, the interrogation is deemed to have been non-custodial.” Cummings v. State, 27 Md. App. 378 . The appellant was not arrested on July 2, 1973.

Indeed, formal proceedings against her did not begin until she was indicted some six months later. ¹⁴⁹ The situation here was very analogous to that dealt with by us in Matter of Carter and Spalding, 20 Md. App. 633 , 318 A. 2d 269 . In dealing with statements made by two juveniles — one in a hospital and the other in a police station — Judge Moore, in an excellently reasoned opinion, held that there was no such custody as to call for the prophylactic warnings of Miranda: “The short answer to this contention is that appellants were not in custody at the time of the statements in question. To hold otherwise would be to find custodial interrogation in any case where a police officer was present and participating or where the questioning took place at a police station. ... Custody thus requires a significant deprivation of the freedom of one upon whom the eye of criminal suspicion has begun to focus.

To see the matter thus is to perceive the considerable distance separating custodial interrogation from the questioning that took place here.” 20 Md. App. at 642-643 . See also Burton v. State, 32 Md. App. 529 , 363 A. 2d 243 (1976). One comment is in order in response to the appellant’s urging, in her brief, that “the Supreme Court has consistently demonstrated that the definition of ‘custodial interrogation’ is to be given the broadest possible reading.” To give “the broadest possible reading” to Miranda in any respect is simply not the current tenor of Supreme Court thinking. The constitutional interpretations of that Court are not immutable as the laws of the Medes and the Persians.

It is to blink at reality for the law to pretend not to see what every literate layman knows — that Miranda v. Arizona is in definite disfavor with the strong majority of the present membership of the institution charged with interpreting the law of the land. Miranda has not been overruled and is not likely to be overruled. The disfavor is manifested by its being read and applied in a restrictive rather than an expansive manner. ¹⁵⁰ In Harris v. New York, 401 U. S. 222 , 91 S. Ct. 643 , 28 L.Ed.2d 1 (1971), the Supreme Court refused to exclude a statement taken from a defendant in violation of Miranda , when the statement was offered by the State in rebuttal for purposes of impeaching the defendant. In doing so, the Court significantly eroded the broad rhetoric of Miranda , saying at 401 U. S. 224 : “Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded as controlling.” In a despairing dissent, Justice Brennan accurately assessed the impact of Harris upon Miranda when he characterized Harris as operating to “seriously undermine” Miranda and saying that Harris “goes far toward undoing much of” Miranda .

In Michigan v. Tucker, 417 U. S. 433 , 94 S. Ct. 2357 , 41 L.Ed.2d 182 (1974), the Supreme Court refused to consider a “mere Miranda” violation significant enough to serve as the primary illegality necessary to trigger the “fruit of the poisonous tree” doctrine. It denigrated the Miranda rules from the constitutional status of being part and parcel of the right against self-incrimination, treating them rather as “only the prophylactic rules developed to protect that right,” 417 U. S. at 439 ; as a “series of recommended ‘procedural safeguards,’ ” 417 U. S. at 443 ; as “suggested safeguards,” 417 U. S. at 444 ; as “only . .. the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege,” 417 U. S. at 446 . In Oregon v. Hass, 420 U. S. 714 , 95 S. Ct. 1215 , 43 L.Ed.2d 570 (1975), the Supreme Court expanded the Harris erosion of Miranda , holding that a statement taken in disregard of a defendant’s request for counsel made in response to the Miranda warnings would not be excluded for impeachment purposes. Again in dissent, Justice Brennan, joined by Justice Marshall, surveyed the further erosion of Miranda , ¹⁵¹ “The Court’s decision today goes beyond Harris in undermining Miranda.” 420 U. S. at 725 .

The most recent indication of the Supreme Court’s attitude toward Miranda came on May 19, 1976, with its decision in United States v. Mandujano, 425 U. S. 564 , 96 S. Ct. 1768 , 48 L.Ed.2d 212 . A suspect upon whom criminal suspicion had definitely focused (he had negotiated the sale of narcotics with an undercover government agent) was summoned before a grand jury. He appeared under that legal compulsion. He was not given Miranda warnings.

When his testimony before the grand jury was later used against him, he invoked Miranda . He prevailed at the District Court where it was held that he was a “putative” or “virtual” defendant entitled to Miranda warnings. 365 F. Supp. 155 (W.D. Tax. 1973). This ruling was upheld by the United States Court of Appeals for the Fifth Circuit. 496 F. 2d 1050 (C.A. 5, 1974). He was in the grand jury chamber under compulsion.

He was without benefit of counsel. Investigation had focused upon him. He was in strange and unfamiliar surroundings. Notwithstanding all of this, the Supreme Court held that this was not custody within the contemplation of Miranda, saying at 48 L.Ed.2d 223 -224: “The court’s analysis premised upon the prosecutor’s failure to give Miranda warnings, erroneously applied the standards fashioned by this Court in Miranda .

Those warnings were aimed at the evils seen by the Court as endemic to police interrogation of a person in custody. Miranda addressed extra-judicial confessions or admissions procured in a hostile, unfamiliar environment which lacked procedural safeguards. The decision expressly rested on the privilege against self-incrimination; the prescribed warnings sought to negate the ‘compulsion’ thought to be inherent in police station interrogation. But the Miranda Court simply did not perceive judicial inquiries and custodial interrogation as equivalents: ‘. . . the compulsion to speak in the isolated setting of the police station may well be greater than in courts or ¹⁵² other official investigations, where there are often impartial observers to guard against intimidation or trickery.’. . . . ..

Indeed, the Court’s opinion in Miranda reveals a focus on what was seen by the Court as police ‘coercion’ derived from ‘factual studies [relating to]