Collins v. State

Liss, J., delivered the opinion of the Court. Leon Collins, appellant, was charged in the Circuit Court for Worcester County with the first-degree murder of Olivia Collins, his wife. The case was originally tried before a jury on January 16, 1981. Upon submission of the issues to the jury it was unable to agree upon a verdict and a mistrial was declared on January 21,1981.

Appellant’s motion to dismiss on the basis of double jeopardy was denied by the trial court. Appellant was subsequently tried and convicted of first-degree murder. Sentence was imposed and it was from the judgment that this appeal was filed. Appellant raises six issues to be determined by this appeal: 1.

Did the lower court err in denying appellant’s motion to suppress extrajudicial statements that were not voluntarily made pursuant to a valid waiver of the privilege against self-incrimination and of the right to an attorney’s presence? 2. Did the lower court err in denying appellant’s ¹⁸⁸ motion to suppress extrajudicial statements obtained during an unreasonable delay in presenting appellant before a judicial officer in violation of MDR 723a? 3. Was appellant deprived of his constitutional right to a speedy trial? 4. Did the lower court err in admitting hypnotically induced testimony? 5.

Did the lower court err in permitting a police officer to testify before the jury that he had been informed that the appellant shot his wife? 6. Did the lower court commit reversible error in failing to provide appellant an opportunity to be present at a critical stage of his trial? 1. A pretrial hearing was conducted by the trial court on the motion to suppress certain statements elicited by police from appellant. Trooper Hornung of the Maryland State Police Department testified that on July 16, 1980, at approximately 12:30 a.m., he had received a report that Olivia Collins, appellant’s wife, had been shot by her husband at a truck stop on Route 13, south of Pocomoke, Maryland.

He further testified that the victim’s whereabouts were unknown and that the appellant’s unoccupied vehicle, with a rifle in the front seat, had been sighted by a trooper at another truck stop adjacent to the truck stop where the incident had occurred. Trooper Hornung proceeded to the appellant’s home and took him into custody. Appellant testified that he was sleeping when he was awakened by a telephone call from the police informing him that his house was surrounded by police and ordering him to come out on the porch with his hands up. Trooper Hornung and two other officers advanced on the appellant with their service weapons drawn and appellant was patted down and taken into the house.

Trooper Hornung stated he read the appellant his Miranda warning when he took appellant into custody at approximately 1:00 a.m. Appellant stated that he understood them. Appellant denied ¹⁸⁹ being advised of his rights until he was taken to the Snow Hill, Maryland jail at approximately 12:20 p.m. on July 16, but, in any case, he acknowledged being given the Miranda warnings and does not contend that he did not understand them. Immediately after the Trooper advised appellant of his Miranda rights, the Trooper testified that the following occurred: "I [Trooper Hornung] asked [appellant] if he was willing to talk to me about his wife, and he indicated that he certainly was.

And I said, 'Where is she?’, and he said that he assumes that she was home and claimed not to have any other knowledge of her. He told me that he had been separated, I believe he said, for four months or so. I then asked him if he owned a weapon, and he said, yes, he had a rifle and it was in the bedroom. And he turned and walked to the bedroom and I followed him.

And in the corner behind the dresser he had a .22 caliber rifle. As I recall, the stock was up and the barrel to the floor standing in the corner. He reached back and picked that up and I immediately took it from him.” The Trooper then questioned appellant for approximately 45 minutes. All the officers who participated in the questioning of the appellant at one time or another testified that no promises or threats were made.

The record makes it clear that the questioning concerned itself almost exclusively with the whereabouts of the appellant’s wife. Appellant assured the officers he wanted to help locate his wife and responded to all questions about where she might be. At about 7:00 a.m., Trooper Hurnung took the appellant to the Snow Hill police station where one Trooper Thomas spoke to him. During his conversation with Trooper Thomas, appellant said he was tired and was permitted to nap for about a half hour.

When he awoke, Trooper Thomas spoke to the appellant for about 45 minutes to an hour. Essentially the ¹⁹⁰ same questions were asked by Thomas as had been asked by Hornung, i.e., concerning Olivia’s whereabouts and whether appellant killed her. This was acknowledged by appellant, in his testimony in support of the motion to suppress. Appellant further acknowledged that he was never handcuffed, beaten or threatened and that he never made any request of the police that was refused.

Appellant ultimately told the officer that he could visualize his wife at a truck stop, driving through water near a boat ramp. Based on this information, appellant, in the company of Troopers Thomas and Hornung, was taken to the municipal boat ramp. When nothing was found at that location, appellant next suggested they look at the boat ramp behind the Campbell Soup plant. There the police found tire tracks leading to the water which appellant stated looked like tracks which could have been made by his wife’s vehicle.

Appellant was then taken before a Commissioner at approximately 12:30 p.m. and charged with attempted murder. Two days later, appellant’s wife was found in her car, in the Pocomoke River, near the boat ramp. It is admitted by the State and the appellant that the Miranda warnings were given to the appellant only at the time he was originally taken into custody and that appellant indicated he understood the rights. Appellant relies primarily on Brown v. State, 6 Md. App. 564 , 252 A.2d 272 (1969), to support his claim that he did not validly waive his Miranda rights.

Waiver of these rights may be shown expressly or by the attendant circumstances. See North Carolina v. Butler, 441 U.S. 369 , 60 L.Ed.2d 286 (1979) ; Leuschner v. State, 45 Md. App. 323 , 413 A.2d 227 (1980) . Cf. Swain v. State, 50 Md. App. 29 , 435 A.2d 805 (1981) .

There is no requirement that there be a statement by an accused that he fully understands and waives his rights. We have carefully considered Brown, supra, and find it distinguishable on the facts from the case at bar. In Brown , this Court was in accord with the cases that held that the Miranda warnings need not be given anew and that the Miranda waiver need not be expressed each time the officers question an accused. See Miller v. United States, 396 F.2d 492 (8th Cir. 1968); State v. Davis, 157 N.W.2d 907 (Iowa ¹⁹¹ 1968).

In Brown , we concluded that the admission of an appellant’s written confession was reversible error where, although he had been given the Miranda warnings the night before, his statement on the following day was given to different interrogators at a police barracks some 50 miles away from the scene of the prior interrogation without any further Miranda warnings or a waiver thereof. The facts are substantially different in the case at bar. There is not the slightest doubt that the Miranda warnings were properly given when the appellant was taken into custody. The record substantiates that appellant acknowledges having been given the warnings and acknowledges understanding them.

The questioning then concerned itself primarily with the whereabouts of the alleged victim. In Brown , this Court considered the time lapse, the distance to the second interrogation, the difference in the interrogators, and the difference in the statements obtained. On the basis of these differences, the Court found that the statements were involuntary. In this case, the time lapse was substantially less; the ultimate statement was made within 5 V2 hours from the original taking of the appellant into custody and the knowing and voluntary waiver of his Miranda rights.

The final questioning occurred at the police barracks and it may be rationally inferred, we think, absent proof to the contrary, that the barracks are located near the appellant’s home. While it is true that the ultimate information was given to Trooper Thomas rather than Trooper Hornung, it is clear from the record that the officers were cooperating in the investigation and we see no need for Trooper Thomas to have reiterated the Miranda warnings. Finally, the information obtained in the statements was essentially consistent throughout. To the end, the appellant denied doing any harm to his wife and also denied knowing her whereabouts.

The vision he related having seen amounted, at the most, to a suggestion that his wife might be found in the water and it is significant, we think, that her body was not recovered ¹⁹² until two days after he had been charged. From our own independent review of the record, we find that the Miranda warnings were seasonably given, that the appellant understood and voluntarily waived these rights, and that there was no physical or psychological coercion used in obtaining the statements he made. We conclude that the trial judge did not err in denying appellant’s motion to suppress the appellant’s statements to the police. 2. Appellant’s second complaint is that the statements made by him to the police officers should have been suppressed because there was an unreasonable delay in presenting him to a judicial officer and, therefore, police had violated Maryland District Rule 723 a, which states in pertinent part as follows: a.

After Arrest. A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than 24 hours after arrest. Appellant claims that the delay was approximately 11 hours. It should be noted the 11 hour delay is well within the 24 hour limit prescribed by the Rule.

The State argues that appellant’s inculpatory statements were made not more than 7 V2 hours after appellant claims he was arrested. The State argues that when the appellant was taken into custody there was no intention to arrest him but the police were merely attempting to locate the alleged victim. The Court of Appeals, in Johnson v. State, 282 Md. 314, 329 , 384 A.2d 709 (1978), enumerated one of the reasons which would excuse a failure to present an accused before a Commissioner even beyond the 24 hour period designated in MDR 723 as an effort "to obtain information likely to be a significant aid in averting harm to persons or loss to property of substantial value.” The trial court, in hearing the appellant’s complaint on this issue, found as a fact that "the series of events that ¹⁹³ followed pointed not so much in finding out whether Mr. Collins was guilty of murder or assault with intent to murder, probably as much or more as they were interested in finding this woman who was obviously severely injured and perhaps dying.” The trial judge’s conclusion was clearly correct in the light of the fact that the evidence was that when the police approached appellant in his house they had arranged an ambulance waiting down the road to carry the alleged victim to the hospital. There was evidence before the trial court that during the lapse of time complained of by appellant, a number of firemen and a helicopter were engaged in searching for the victim in a fruitless attempt to save her life.

We agree with the trial judge that these facts justified the delay in presenting the appellant to a Commissioner and that the court was correct in denying the motion to suppress on this ground. 3. Appellant contends that the trial court erred in denying appellant’s motion to dismiss for violation of the appellant’s statutory and constitutional right to a speedy trial. We do not agree. The pertinent time frame of the proceedings in this case was as follows: July 16, 1980 Appellant arrested.

January 16-21, 1981 First trial — terminating in mistrial. April 21, 1981 State’s witness undergoes hypnosis. April 27, 1981 Motion to dismiss for lack of speedy trial. June 10-11, 1981 Hearing on admissibility of hypnotically induced testimony.

July 1, 1981 Trial rescheduled August 10, 1981. ¹⁹⁴ August 6, 1981 Opinion and order of court on admissibility of hypnotically induced testimony. August 10, 1981 Motion to dismiss for lack of speedy trial. August 10, 1981 Trial In the course of the hearings on the motions to dismiss for lack of a speedy trial it was disclosed that appellant had been incarcerated since the date of his arrest and that the State had opposed and the court had denied bail. At the hearing on April 27,1981, the State requested that the court rule on the admissibility of the hypnotically induced testimony in advance of trial.

The record discloses that at the April hearing appellant moved to dismiss the indictment because he had not been tried within 180 days as required by Maryland Rule 746. Appellant did not move to dismiss upon any alleged violation of his constitutional right to a speedy trial. The trial court correctly denied appellant’s motion since we have held that the 180 day rule (Hicks rule) does not apply to retrials. See Donalds v. State, 49 Md. App. 106 , 430 A.2d 113 (1981).

After the trial judge denied the motion to dismiss on this ground, a discussion ensued between the State and counsel for the appellant as to the advisability of the trial court ruling pretrial on the issue of the admissibility of the hypnotically induced testimony. The prosecutor indicated that he was prepared to go forward on that issue but the trial judge expressed a reluctance to proceed in the light of the recently decided case of Polk v. State, 48 Md. App. 382 , 427 A.2d 1041 (1981). The judge suggested that he would postpone the case if requested by appellant’s counsel and urged counsel to consider making the request in order that he might make a proper defense for his client. After full discussion, appellant’s counsel requested the postponement.

The total elapsed time from the date of the original mistrial of January 21,1981, to the date of trial August 10, 1981 was less than seven months. In the light of the factual situation in this case and the numerous complex pretrial issues ¹⁹⁵ required to be heard and considered, we do not find appellant’s right to a speedy trial having been violated under Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972). 4. Appellant next contends that the trial court erred in allowing the State to admit into evidence the hypnotically induced testimony of one Alfred Lee Davis, one of the State’s witnesses. Davis’ memory had been hypnotically refreshed by Dr. Edmund T. Delaney, an expert in hypnotherapy, during the interim between the first and second trial of appellant.

The hypnosis session was conducted after this Court filed its opinion in the case of Polk v. State, supra. Appellant, in a pretrial motion to suppress, contended that hypnotically induced or refreshed memory is not regarded as reliable within the relevant scientific community and that the trial court should have held Davis to be incompetent to testify. 1 The admissibility of hypnotically induced testimony and the use of this technique in memory assistance or retrieval has had a somewhat tortured history. In Harding v. State, 5 Md. App. 230 , 246 A.2d 302 (1968), cert. denied, 395 U.S. 949 , 89 S.Ct. 2030 , 23 L.Ed.2d 468 (1969), we held that: [O]n the facts of this case the testimony of Mildred Coley [the victim] was sufficient to support a jury’s verdict that Harding [the accused] was guilty of the crime of attempted rape. In so holding we go no further than is required by those facts.

The following evidence was adduced: ¹⁹⁶ (1) the hypnosis procedure was fully exposed in the evidence; (2) the man who induced the hypnosis was a professional psychologist and gave his opinion that there was no reason to doubt the truth of the witness’ statement; (3) there was sufficient corroboration of the witness’ testimony: (a) male sperm was found in the victim’s vagina, (b) the accused was one of two males shown to have known where the victim could have been found when the crime was committed, (c) the accused was seen in a station wagon immediately prior to the time the crime was committed. In addition, a precautionary instruction was given. [ 5 Md. App. at 246-47 ]. In State v. Temoney, 45 Md. App. 569, 576 , 414 A.2d 240 (1980), vacated on other grounds, 290 Md. 251 , 429 A.2d 1018 (1981), we relied on Harding, supra, and again held that hypnotically induced testimony was admissible. In Harding , we did not reach the issue of different scientific viewpoints or of general scientific acceptance of the use of hypnosis.

During the post Harding interim to the present, a substantial controversy arose in the scientific community as to the scientific justification for the admissibility of hypnotically induced testimony. 2 A number of jurisdictions followed Harding , however, in each of these cases the courts held that the post hypnotic recall was admissible with all questions going to the weight of the testimony. See, e.g., Clark v. State, 379 So.2d 372 (Fla. Ct. App. 1979); State v. McQueen, 295 ¹⁹⁷ N.C. 96, 244 S.E.2d 414 (1978); State v. Jorgensen, 8 Ore. App. 1 , 492 P.2d 312 (1971).

In none of the cases above cited was the issue of general scientific acceptance of the hypnosis procedure addressed. As we held in Polk v. State, supra, the test for admission of evidence obtained from the use of a scientific principle, theory or discovery is derived from an early case which involved the question of the admissibility of evidence derived from polygraph tests. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Although the Frye test had been applied to a variety of situations in a number of jurisdictions, it was not adopted in Maryland until the decision in Reed v. State, 283 Md. 374 , 391 A.2d 364 (1978), where Judge Eldridge, speaking for the Court of Appeals, acknowledged that "LT]he test which has gained general acceptance throughout the United States for establishing the reliability of such scientific methods was first articulated in Frye v. United States, [supra].” 283 Md. at 381 .

Judge Eldridge then quoted from the Frye opinion as follows: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. (Emphasis supplied.) [Id. at 381]. Judge Eldridge further explained as follows: That is to say, before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.

Thus, according to the Frye standard, if a new scientific technique’s validity is in controversy in the relevant scientific community, or if it is