Bowers v. State

SMITH, Judge. Appellant, Marselle J. Bowers, was convicted of murder in the first degree by a Charles County jury. The jury subsequently determined that he should be sentenced to death. We shall affirm the conviction.

However, we shall vacate the death sentence because the jury failed to find a mitigating factor which the State at trial conceded the evidence showed. The case reaches us pursuant to the provisions of Maryland Code (1957, 1982 Repl.Vol.) Art. 27, § 414 stating that whenever the death penalty is imposed we shall review the sentence. I The basic facts are not in dispute. Pursuant to Maryland Rule 828 g the parties have entered into an agreed statement of facts.

We shall repeat only so much as is necessary ¹²¹ for a clear understanding of the case. Additional facts will be developed as we discuss the various contentions of the parties. Ethel Clark lives near Maryland Rt. 90 outside Ocean City in Worcester County. At approximately 8:15 p.m. on July 8, 1981, a woman’s screams and certain loud noises drew her attention to two cars parked alongside that highway.

She saw no one other than a tall black man standing near the cars but she heard two voices. The larger of the two cars left the scene after about fifteen minutes. The small car was still there the next morning. John O’Connell was the boyfriend of Monica McNamara.

He was on a temporary work assignment at a hospital in Salisbury and was staying at a condominium in Ocean City. He expected Miss McNamara to join him on the evening of July 8. When she did not arrive he called her home in the Washington, D.C., suburbs but received no answer. While enroute to work on the morning of July 9 O’Connell saw Miss McNamara’s Ford Pinto parked along Rt. 90.

He stopped and searched the immediate area. He found her keys and one of her sandals on the ground behind the car and her overnight bag and beach bag on the back seat of the car. He then went to Ethel Clark’s house and asked her to call the police. Later on the morning of July 9 Maryland State Police found Miss McNamara’s body near a railroad overpass close to southbound U.S. Rt. 13 in Somerset County.

That point is just outside Pocomoke City which is in Worcester County. The body had been dragged a short distance off the road. The cause of death was later determined to be strangulation. The State Police learned on July 31 that a man identifying himself as Robert McNamara had been arrested in Peters-burg, Virginia, on a charge of defrauding an innkeeper.

This man had attempted to use Monica McNamara’s credit cards to pay for his room. Two employees at the Ramada Inn in Petersburg identified Bowers as the individual who posed as Robert McNamara and used Monica McNamara’s ¹²² credit cards. By stipulation the parties agreed that a handwriting expert would testify that in his opinion the signature “Robert McNamara” appearing on various documents at the Ramada Inn was in the handwriting of Bowers. On August 1 Trooper D. Bruce Hornung of the Maryland State Police interviewed Bowers at the Petersburg jail.

Hornung advised Bowers of his Miranda rights at approximately 9:15 a.m. Bowers signed a written waiver using the name of Robert McNamara. When advised by Trooper Hornung that he knew Robert McNamara was not his real name, appellant said that his name was Marselle Jerome Bowers. The questioning by Trooper Hornung was directed to how Bowers came into possession of the credit cards.

Several different stories were told by Bowers. At approximately 11:45 a.m. Bowers asked to use the telephone. He placed calls to several numbers before he made a connection where he carried on a conversation.

When Bowers returned to the interview room he said, “I need a lawyer, but I am not going to take the rap for this thing because I didn’t kill her. But I am involved in it, and I have just talked to a Christian woman and she told me to tell the truth.” Bowers then proceeded to give Trooper Hornung a lengthy statement in narrative form in which he said that both he and an accomplice named Alexander Peterson had had sexual intercourse with the victim and that his accomplice had strangled the victim to death. Bowers indicated that Peterson was a fugitive from the Chicago area. At trial the State introduced records from the Pontiac Correctional Center in Illinois showing that an Alexander Peterson was incarcerated at that institution at the time of the offense in question.

On August 2 Trooper Hornung searched the 1977 Ford LTD that Bowers had been using at the time he checked into the Ramada Inn. Several items were removed and submitted to the Maryland State Police laboratory in Pikesville. Evidence was adduced at trial showing that a piece of vinyl ¹²³ taken from that vehicle was stained with type A blood, the same type as that of the victim. Bowers presented no evidence at trial.

II Bowers claims that the trial court erred in denying his motion to suppress his extrajudicial statement. A Right to counsel He first contends that he invoked his right to counsel when he returned to the interview room at approximately 12:15 p.m. and made the statement we have quoted to the effect that he needed a lawyer. Bowers argues: “Trooper Hornung clearly understood the significance of Appellant’s statement. He was careful to record it ‘verbatim.’ Instead of terminating or readvising Appellant of his Miranda rights, Trooper Hornung said nothing.

His choice was deliberate. He permitted Appellant to proceed with a rambling narrative of events hoping that Appellant would incriminate himself. Trooper Hornung’s silence at this point was simply a more subtle, but nonetheless effective interrogation technique. When Appellant gave ‘false information’, Trooper Hornung did not hesitate to interrupt.

He broke Appellant down for more than three hours and then, when Appellant asserted his right to counsel, he carefully refrained from further direct questioning. Since this interrogation technique was designed to elicit incriminating information, it should be condemned.” He relies on Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981); Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980); Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966); and Whitfield v. State, 287 Md. 124, 142-43 , 411 A.2d 415 , cert, dismissed, 446 U.S. 993 , 100 S.Ct. 2980 , 64 L.Ed.2d 850 (1980). They do not support his position. We first note that the trial judge said, “Upon consideration of the testimony and evidence presented, the Court is convinced that the ¹²⁴ defendant was given and understood the Miranda warnings, and that he voluntarily made the statements at issue.” In Edwards the Court reaffirmed its holding in Miranda and said that “it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.” 451 U.S. at 485 , 101 S.Ct. at 1885 .

In the next succeeding paragraph Justice White said for the Court: “Had Edwards initiated the meeting on January 20, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial. The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver. Rhode Island v. Innis, supra, makes this sufficiently clear. 446 U.S., at 298, n. 2 [100 S.Ct. at 1688, n. 2].” 451 U.S. at 485-86 , 101 S.Ct. at 1885 (footnote omitted).

In order to determine that there is a violation we must find that interrogation took place. In Whitfield, 287 Md. 124 , 411 A.2d 415 , Judge Digges said for the Court: “Once such custody is established, a court must still determine whether an ‘interrogation’ took place before a violation of Miranda exists. ‘Interrogation,’ like ‘custody,’ is not easily defined, although in its usual sense, it ‘refers to police questioning designed to elicit a response from a suspect.’ Lederer, [Miranda v. Arizona — The Law Today,] 78 Mil.L.Rev. [107,] 134 [(1977)]. Of course, not questioning by law enforcement officials of one in custody is tantamount to an interrogation in the Miranda sense. See Vines v. State, 285 Md. 369, 375-76 , 402 A.2d 900, 903-04 (1979).

For example, in a recent opinion by Judge Orth, this Court noted: ‘There seems to be general agreement ... that Miranda does not apply to “administrative questioning,” the routine questions asked of all arrestees ¹²⁵ who are “booked” or otherwise processed.’ Id. at 376, 402 A.2d at 904 . However, except for this type of questioning, if custody is found to exist, then any examination likely to lead to incriminating statements will be a ‘Miranda interrogation.’ ” 287 Md. at 142-43 , 411 A.2d 415 . In Whitfield we said, “that the mere fact that Officers Britton and Young did not intend to elicit incriminating information from Whitfield for prosecutorial purposes does not mean that they did not interrogate him in the Miranda sense.” 287 Md. at 143 , 411 A.2d 415 . Their concern there was to secure the prison area by locating a gun known to be within the area.

In Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 , Justice Stewart said for the Court: “[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” 446 U.S. at 300-01, 100 S.Ct. at 1689-1690 (footnotes omitted). In Innis the accused was arrested and given his Miranda rights at which time he requested an attorney.

He was placed in the back of a police car and transported to the police station in the company of three officers. The officers had been instructed “not to question the respondent or intimidate or coerce him in any way” enroute to the station. 446 U.S. at 294, 100 S.Ct. at 1686. During that trip one officer said he frequented the area in question while on patrol and that because of a school for handicapped children located nearby it would be conceivable that one might hurt himself if he found a weapon with shells. A second officer concurred in this concern and said that he should continue to ¹²⁶ search for the weapon and try to find it.

The accused then interrupted the conversation, stating that the officer should turn the car around so he could show them where the gun was located. At the scene of the search a police captain again advised the accused of his Miranda rights. As the Supreme Court put it, “The respondent replied that he understood those rights but that he ‘wanted to get the gun out of the way because of the kids in the area in the school.’ ” 446 U.S. at 295, 100 S.Ct. at 1687. He then led the police to a nearby field where the shotgun was under some rocks by the side of the road.

Id. After first having said, “A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation,” 446 U.S. at 301, 100 S.Ct. at 1690, the Court said: “Turning to the facts of the present case, we conclude that the respondent was not ‘interrogated’ within the meaning of Miranda . It is undisputed that the first prong of the definition of ‘interrogation’ was not satisfied, for the conversation between Patrolmen Gleckman and McKenna included no express questioning of the respondent. Rather, that conversation was, at least in form, nothing more than a dialogue between the two officers to which no response from the respondent was invited. “Moreover, it cannot be fairly concluded that the respondent was subjected to the ‘functional equivalent’ of questioning.

It cannot be said, in short, that Patrolmen Gleckman and McKenna should have known that their conversation was reasonably likely to elicit an incriminating response from the respondent. There is nothing in the record to suggest that the officers were aware that the respondent was peculiarly susceptible to an appeal to his conscience concerning the safety of handicapped children. Nor is there anything in the record to suggest that the police knew that the respondent was unusually disoriented or upset at the time of his arrest. “The case thus boils down to whether, in the context of a brief conversation, the officers should have known that ¹²⁷ the respondent would suddenly be moved to make a self-incriminating response. Given the fact that the entire conversation appears to have consisted of no more than a few offhand remarks, we cannot say that the officers should have known that it was reasonably likely that Innis would so respond.

This is not a case where the police carried on a lengthy harangue in the presence of the suspect. Nor does the record support the respondent’s contention that, under the circumstances, the officers’ comments were particularly 'evocative.’ It is our view, therefore, that the respondent was not subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response from him.” 446 U.S. at 302-03, 100 S.Ct. at 1690-1691 (footnote omitted). Factually similar to this case is Leuschner v. State, 49 Md.App. 490 , 433 A.2d 1195 , cert, denied, 291 Md. 778 (1981), decided after Edwards . An earlier version of that case, Leuschner v. State, 45 Md.App. 323 , 413 A.2d 227 , cert, denied, 288 Md. 738 (1980), was remanded to the Court of Special Appeals by the Supreme Court of the United States on the same day that it decided Edwards in order that the intermediate appellate court might consider the case in the light of Edwards .

Judge Lowe in Leuschner II said for the court: “Perhaps because he recognized discrepancies within his interviews, during the late afternoon of the day of his arrest, Leuschner asked for an attorney. This request was not specified in regard to the fugitive warrant under which he was detained, but was obviously in regard to the Rusty Marine questioning. The police offered Leuschner the use of the telephone (already next to him) to call an attorney or, in the alternative, offered to call an attorney for him. Leuschner neither called nor requested assistance but asked rather to see his paramour, Betty Larmore, who was in the next room and who was immediately brought into the interrogation area.

Without the slightest instigation by the police officers, Leuschner continued ¹²⁸ his conversation, talking first to Ms. Larmore in the presence of the officers and subsequently joining them in his conversation.” 49 Md.App. at 494-95 , 433 A.2d 1195 . The court went on to say: “Whether police conduct is tantamount to a reinterrogation following Fifth Amendment invocation by request for counsel in the contemplation of Miranda , is also dependent upon the particular facts and circumstances of each case. Vines v. State, 285 Md. 369, 376 [ 402 A.2d 900 ] (1979). Here, although Leuschner’s version contradicted portions of the State’s case as to his request for an attorney as well as his advisement of rights, the judge simply did not believe him and did believe the State’s testimony.

While his ruling was from a position of advantage, our own independent constitutionally required review of a cold record reveals clearly that his judgment was correct. That record reveals not a scintilla of compulsion, nor any indication that there were words (or actions which were their functional equivalent) which would have been reasonably likely to elicit an incriminating response. There was simply no interrogation by the police until well after Leuschner had, by his conduct, words and actions, waived the prior invocation of his right to have counsel present.” 49 Md.App. at 496-97 , 433 A.2d 1195 . On the issue of whether the police initiated what Leuschner called an interrogation, the court said: “Listening to a garrulous ‘suspect’ uninterruptedly rattle on alternately to his girlfriend and the police is not an ‘initiation’ of an interrogation — even if such conduct could have been interpreted as a functional equivalent of questioning.” 49 Md.App. at 498 , 433 A.2d 1195 .

It must not be forgotten that in Edwards the Court said: “We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communi ¹²⁹ cation, exchanges, or conversations with the police.” 451 U.S. at 484-85 , 101 S.Ct. at 1885 . The Supreme Court recently reaffirmed this holding in Oregon v. Bradshaw, - U.S. -, 103 S.Ct. 2830 , 77 L.Ed.2d 405 (1983) (plurality opinion), finding that the defendant’s Miranda rights had not been violated and that in fact he had initiated the conversation with the police. In Bradshaw , the Court stated that “[t]here can be no doubt in this case that in asking, ‘Well, what is going to happen to me now?’, respondent ‘initiated’ further conversation in the ordinary dictionary sense of that word.” -U.S. at-, 103 S.Ct. at 2835 . As this Court noted in Radovsky v. State, 296 Md. 386 , 464 A.2d 239 (1983), the Supreme Court in Bradshaw “stated that a ‘generalized discussion relating ... to the investigation’ did constitute the initiation of conversation in the Edwards sense . . . . ” 296 Md. at 401 , 464 A.2d 239 .

Bowers initiated the conversation with police after his telephone call. Nothing prohibited the police from merely listening to what he had to say. There was no interrogation within the meaning of Miranda . B Bowers contends “that his extrajudicial statements should have been suppressed because the Maryland State Police did not have the requisite probable cause to arrest him, and thus interrogate him, in connection with the death of Monica McNamara prior to his interrogation.” It must first be noted that at the time the Maryland State Police first interrogated Bowers he was not under arrest by them in connection with the death of Monica McNamara.

He was under arrest by Virginia authorities for defrauding an innkeeper. Bowers says that when the trooper interviewed him the trooper “simply knew that [Bowers] had used Monica McNamara’s credit card to pay for a room in the Ramada Inn one week after her death.” ¹³⁰ Bowers relies upon Dunaway v. New York, 442 U.S. 200 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979), and Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975). Those cases deal with illegal arrests. There simply was no illegal arrest here.

The Virginia authorities were fully justified in their arrest of Bowers. Maryland police were fully justified in interrogating Bowers, then held in lawful custody by Virginia authorities, relative to his possession of credit cards belonging to the victim of the crime in the case at bar. Ill Bowers claims that the trial court erred in admitting evidence that someone named Alexander Peterson was incarcerated in Illinois at the time of the crime. As he puts it in his brief: “According to the police, Appellant had in his statement placed primary responsibility for . the crime on Alexander Peterson who was ‘on the run from Chicago.’ The state introduced records showing that an Alexander Peterson had been incarcerated in Illinois since November 23,1979.” Trooper Hornung testified that during the questioning of Bowers in Virginia Bowers told him that he had an accomplice, Alexander Peterson, who was traveling with Bowers, participated in the rape and was actually the one who strangled the victim to death.

Bowers argues, “Since there was no link between the prosecutor’s Alexander Peterson and the one in the confession, the evidence should have been excluded.” 1 Wharton’s Criminal Evidence § 103 (C. Torcía 13th ed. 1972) states: “Identical names give rise to a presumption of identity of person. This presumption is slight when the name is common and there are many persons having the same name. It increases in strength with circumstances indicating the improbability of there being two persons of the same name at the same time and place, and where there is no evidence that there is any other person bearing that ¹³¹ name. Identity, then, can be presumed from names coupled with other circumstances.

There is some case law to the effect that the identity of names alone gives rise to a rebuttable presumption of identity of person.” Id. at 180. This same passage was cited with approval in Murphy v. State, 47 Md.App. 387 , 422 A.2d 1297 (1980), cert, denied, 289 Md. 738 (1981), and Sallie v. State, 24 Md.App. 468 , 332 A.2d 316 (1975). By giving the police the name of Alexander Peterson who, Bowers said, was “on the run from Chicago,” Bowers forced police to attempt to locate this alleged accomplice. When Peterson was located in an Illinois prison, a presumption of identity of persons arose.

It then became the province of the jury to weigh the evidence in determining whether the Alexander Peterson who was located in Illinois was the same one referred to by Bowers. As stated in Thomas v. State, 32 Md.App. 465, 477 , 361 A.2d 138 (1976), “[I]t is for the jury to pick and sift, to stress and ignore, to believe and disbelieve, to weigh and assess, and resolve the conflicts in reaching a final decision to acquit or convict.” The surname of the alleged accomplice was not as common as Brown, Johnson, Jones, or Smith, nor was the given name as common as Charles, Henry, John, or William. The evidence was admissible. The jury simply chose to believe the State’s contention that the Alexander Peterson to whom Bowers referred was not involved in the commission of the crime in the case at bar.

Bowers was not denied the opportunity to offer contrary evidence to disprove the State’s assertion or to argue in closing that the Alexander Peterson presented by the State was not the same Alexander Peterson to whom Bowers referred. Bowers also contends that the Peterson record was inadmissible because its existence was not made known to the defendant pursuant to his motion for discovery under Maryland Rule 741. The State contends and the trial judge found, relying upon Code (1974, 1980 Repl.Vol.) § 10-204, Courts and Judicial Proceedings Article pertaining to admis ¹³² sibility of public records, that the record was admissible as a public record. If we were to assume, arguendo, that there was error on this point, the error would be harmless beyond a reasonable doubt, Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976), becáuse Bowers knew of the State’s use of this record.well in advance of the trial in the case at bar.

He knew this because of the State’s use at his kidnapping trial in the Circuit Court for Talbot County. That conviction was affirmed by the Court of Special Appeals in Bowers v. State (unreported), No. 1300, September Term, 1982, decided May 19,1983, cert, denied, 297 Md. 310 (1983). IV Bowers claims that the trial judge erred in refusing to admit into evidence the entire crime laboratory report completed by an expert witness for the State. One of the State’s witnesses was Robert Radnoti, a forensic chemist with the Maryland State Police crime laboratory.

Radnoti was involved in the analysis of items taken from the victim’s automobile. After qualifying him as an expert, the State exhibited to Radnoti a piece of vinyl. He was asked whether he had ever seen it before. He said that he had.

He indicated it was a part of the evidence in the Bowers case. Radnoti was asked whether he had had occasion to analyze the stain that appears on that piece of vinyl. He replied that he did. In response to the next succeeding question he stated, “It is a blood stain and it was identified as group A human blood.” The State asked no further questions.

Bowers’ attorney asked to see the report from which Radnoti was testifying. He then asked that the report be introduced into evidence. The State objected to the admission of anything other than that portion relevant to its questioning on direct examination concerning the vinyl, the blood, and the blood type. The trial judge sustained the objection.

Over the further objection of the State, however, Radnoti was required to set forth the very extensive list of items which he received. Subsequently, defense counsel ¹³³ attempted to question the witness on specific items. The State objected and the objection was sustained. In discussion at the bench it was suggested to defense counsel that he should call Radnoti as his own witness if he wanted the evidence admitted.

He declined. Bowers contends here: “The testimony of the witness concerning one isolated piece of information contained in the report allowed the prosecution to create the appearance that the report conclusively and unquestionably linked Appellant to the crime scene. This one fact in isolation provided an aura of certainty to this conclusion which the entire report, had it been admitted, would not have supported. The report reveals that much of the evidence examined either did not relate to the Appellant or could not with certainty be said to relate to him. “Maryland has long recognized the principle that ‘[t]he offer in testimony of a part of a statement or conversation, upon a well-established rule of evidence, always gives to the opposite party the right to have the whole.’ Smith v. Wood, 31 Md. 293, 296-97 (1869).

Wigmore on Evidence, 3rd Ed., Vol. VII, § 2113 states the principle this way: ‘[T]he opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance.... [TJhere is and could be no difference of opinion as to the opponent’s right, if a part only has been put in, himself to put in the remainder.’ ” (Emphasis in original.) Citing Feigley v. Balto. Transit Co., 211 Md. 1, 10 , 124 A.2d 822 (1956), he relies also on the verbal completeness doctrine. What took place here is not comparable or analogous to the admission of a part of a statement or conversation, which requires that the whole statement or conversation be admitted.

It would be comparable if only a part of the ¹³⁴ analysis concerning the blood stains had been admitted into evidence. In Feigley Chief Judge Bruñe discussed the verbal completeness doctrine for the Court. He concluded by quoting from 7 J. Wigmore, Evidence § 2113 (1940): “ ‘This right of the opponent to put in the remainder is universally conceded, for every kind of utterance without distinction; and the only question can be as to the scope and limits of the right. “ ‘The ensuing controversies are in effect concerned merely with drawing the line so that the opponent shall not, under cloak of this conceded right, put in utterances which do not come within its principle and would be otherwise irrelevant and inadmissible. In the definition of the limits of this right, there may be noted three general corollaries of the principle on which the right rests, namely: “(a) No utterance irrelevant to the issue is receivable; “(b) No more of the remainder of the utterance than concerns the same subject, and is explanatory of the first part, is receivable; “(c) The remainder thus received merely aids in the construction of the utterance as a whole, and is not in itself testimony.’ ” 211 Md. at 10 , 124 A.2d 822 (emphasis in original).

See also McCormick on Evidence § 56 (Cleary 2d ed. 1972). The crime laboratory report does not fit within this framework. With the exception of that part of the report dealing with the blood stains on the piece of vinyl, the report is irrelevant to the issue brought out on direct examination concerning the blood stain. The remainder of the report in no way explains the stains on the vinyl but consists of the results of numerous other tests done on many other articles taken from the vehicle Bowers was operating.

The remainder of the report would in no way aid in the construction of the testimony elicited from Radnoti. We emphasize that the State never sought admission of any part of the report. ¹³⁵ We find no error on this point. As Judge Levine observed for the Court in Caldwell v. State, 276 Md. 612, 618 , 349 A.2d 623 (1976), “[T]he scope of cross-examination, ... is a matter which rests largely within the reasonable discretion of the trial judge.” (Citing cases.) V Bowers claims the trial judge erred in admitting eleven photographs “on the theory that they were admissible as part of the post-mortem report.” He recognizes, as he must, that Code (1957) Art. 22, § 8, applicable to this proceeding (now Code (1982) § 5-311, Health-General Article), provides that “records of the results of views and examinations of or autopsies upon the bodies of deceased persons” by the “medical examiner, or by anyone under his direct supervision or control” shall be admissible in evidence. Bowers contends that photographs are not mentioned and thus are not part of the record.

It is obvious that the photographs here were integral parts of the record. Aside from that, a virtually identical issue was before the Court in Cook v. State, 225 Md. 603 , 171 A.2d 460 (1961), cert, denied, 368 U.S. 970 , 82 S.Ct. 445 , 7 L.Ed.2d 398 (1962). The issue there before the Court concerned photographs of the body as originally seen by the medical examiner at the apartment of the deceased. Judge Prescott said for the Court: “The appellant argues that ‘the conclusion is inescapable that the photographs of the deceased were inflammatory and were such as to create prejudice against the defendant.’ However, he fails, utterly, to show in what manner the photographs tended to create prejudice against him.

The exhibits were simple photographs of the body of the deceased showing a single gunshot wound in the upper right chest, which had been described by the Coroner. It is difficult to discern how photographs of this simple nature were ‘inflammatory,’ or ‘were such as to create [legal] prejudice against the defendant.’ Whether or not a photograph is of practical value in a case is within the sound discretion of the trial court, whose decision thereon ¹³⁶ will not be disturbed unless plainly arbitrary. Corens v. State, 185 Md. 561, 570 , 45 A.2d 340 [ (1946) ]; Consolidated Gas, etc., Co. v. Smith, 109 Md. 186, 199 , 72 A 651 [(1909)]. Cf.

Madison v. State, 200 Md. 1, 7-8 , 87 A.2d 593 [ (1952) ]. We find no abuse of discretion in admitting the photographs.” 225 Md. at 608 (bracket in original). See also Perry v. State, 234 Md. 48, 54 , 197 A.2d 833 (1964); Carroll v. State, 11 Md.App. 412, 414 , 274 A.2d 677 , cert, denied, 262 Md. 745 (1971). We find no abuse of discretion on the part of the trial judge.

VI Bowers asserts that the admission of the autopsy report unaccompanied by the testimony of the medical examiner who prepared it violates his constitutional right to confront witnesses against him. He claims that in admitting the autopsy report the trial judge appears only to have considered the hearsay aspect of this record and did not examine whether its admission violated Bowers’ Sixth Amendment right to confrontation of witnesses. The identical issue was considered in Grover v. State, 41 Md.App. 705 , 398 A.2d 528 (1979). There, too, the State was allowed to introduce the autopsy report which contained a statement by a doctor who did not testify at trial.

In Grover the appellant relied on Gregory v. State, 40 Md.App. 297 , 391 A.2d 437 (1978), arguing “that his Sixth Amendment right of confrontation was violated by the introduction of a document prepared in whole or in part by a party not present in court to testify.” 41 Md.App. at 710 , 398 A.2d 528 . Judge Thompson said for the court: “In Gregory v. State, supra, we noted that the field of forensic psychiatry was an inexact science and that differences of opinion frequently existed between experts in the field. This being so, we concluded that the opportunity to cross-examine a witness giving such opinion evidence could be of crucial importance. It should not be supposed that Gregory stands for the proposition that the confrontation clause of the constitution precludes the admission of ¹³⁷ all evidence under exceptions to the hearsay rule.

Dr. Azzarelli’s statement in the autopsy report did not express any opinion. It merely stated his findings of the physical condition of the decedent’s brain. As such it falls under the category of a ‘fact or condition objectively ascertained,’ and was probably admissible as a business record as provided by the Md.Code, Courts and Judicial Proceedings Article, Section 10-101. It was clearly admissible under Md.Code, Article 22, § 8 which has been construed by Benjamin v. Woodring, 268 Md. 593, 608 , 303 A.2d 779 (1973) to make autopsy reports admissible as to facts, but not as to opinions.” 41 Md.App. at 710-11 , 398 A.2d 528 (footnote omitted).

As in Grover , the autopsy report here merely stated findings as to the physical condition of the victim. The only thing that comes near to an opinion in the report are its final two sentences which state, “In view of the history and findings at autopsy, the death of MONICA MCNAMARA, a twenty-eight year old White female, is attributed to strangulation. The manner of death is HOMICIDE.” Although it was only the opinion of the medical examiner that this was a homicide, there has never been any dispute but what it was. Moreover, Bowers admitted that she was strangled.

The autopsy report here was admissible without the testimony of the physician who prepared it. YII A Bowers claims that the trial court erred in denying his motion to suppress evidence obtained from the vehicle of Bessie Crain, which Bowers operated, at the time of his apprehension. He asserts that “the warrantless search of Bessie Crain’s automobile on August 2, 1981, cannot be justified under the so-called ‘automobile exception’ because there was no exigency.” He says that “[h]e had helped to pay for the car, done most of the maintenance, and purchased new tires and a new transmission during the preced ¹³⁸ ing year.” Accordingly, he argues that “his use was authorized at the time of the search [and] he had the requisite standing to object.” He recognizes that under United States v. Salvucci, 448 U.S. 83 , 100 S.Ct. 2547 , 65 L.Ed.2d 619 (1980), and Gahan v. State, 290 Md. 310 , 430 A.2d 49 (1981), it must be shown that he had a legitimate expectation of privacy in the area searched for him to be successful in his contentions. Bowers declined to offer any evidence on the issue of the search of the vehicle.

Mrs. Crain testified that it was used without her permission, that she actually had a warrant out for Bowers because of his unauthorized use of the vehicle, and that “he wanted [her] to stop the warrant.” She said that the sum invested by Bowers in the vehicle was without her permission and that she told him that the “parts” he wanted put on the vehicle she “didn’t want on [her] car but [Bowers] put them on there anyway.” The trial judge said: “The evidence introduced at the hearing established that the defendant had taken the car without the owner’s permission, and that he had no proprietary or rightful possessory interest in the car. As the State contends, the defendant lacks standing to challenge the search and seizure of the vehicles [sic] and items found therein.” We perceive no error. B Bowers argues: “Appellant submits that the warrantless search of his room was also unreasonable. He had a reasonable expectation of privacy in the motel room.

Johnson v. United States, 333 U.S. 10 , 68 S.Ct. 367 , 92 L.Ed. 436 (1948). Although the search was conducted by a private citizen, she was in effect operating as an agent of the State of Virginia. But see Herbert v. State, 10 Md.App. 279 , 269 A.2d 430 (1970) [cert, denied, 260 Md. 720 (1971)]. Co-well’s authority to enter Appellant’s room and seize his ¹³⁹ belongings was dependent upon her status as an innkeeper licensed by the State.

If she were not a state agent, she would not have held Appellant’s property for the police.” A search of Bowers’ motel room was conducted by the accounting supervisor of the Ramada Inn the morning after Bowers was arrested for attempting to defraud an innkeeper. She explained that “before the maid can get in to clean, somebody has to say there are no belongings there.” She further testified that any items found would be kept by the motel until the bill was paid. Bowers offered no evidence on the issue. The trial judge said: “The testimony of two hotel employees established that the items were removed from the room by one of the employees as part of a customary procedure of the hotel.

The Fourth Amendment’s proscription against illegal searches and seizures applies only to conduct of governmental officers or their agents, and not to private citizens who are not acting for the State. Burdeau v. McDowell, 256 U.S. 465 [, 41 S.Ct. 574 , 65 L.Ed. 1084 ] (1921); Coolidge v. New Hampshire, 403 U.S. 443 [, 91 S.Ct. 2022 , 29 L.Ed.2d 564 ] (1971).” The law as applied to private persons, such as the hotel employee in the case at bar, who conduct warrantless searches and seizures is as stated by Judge Orth for the Court of Special Appeals in Herbert v. State, 10 Md.App. 279 , 269 A.2d 430 (1970), cert, denied, 260 Md. 720 (1971): “We believe that by history, judicial rule and application, the exclusionary rule as to evidence seized in violation of the Fourth Amendment comes into play only when the evidence is obtained by governmental action. Whatever wrong is done by the act of one individual in taking the property of another, it is no invasion of the security afforded by the Fourth Amendment against unreasonable searches and seizures. Burdeau v. McDowell, [ 256 U.S. 465 ,] at 475 [ 41 S.Ct. 574 at 576 ].

When an individual obtains incriminatory matter from an accused, no matter how improperly, and such matter comes into the possession of the government without a violation of the ac ¹⁴⁰ cused’s rights by governmental authority, the