Cummings v. State

Moylan, J., delivered the opinion of the Court. Myriad eases have dealt with the issue of whether Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 (1966), has been complied with. The convictions now under review — those of William Ralph Cummings by a Baltimore City jury presided over by Judge Shirley B. Jones for automobile manslaughter and related traffic offenses — deal with the somewhat rarer threshold issue of whether Miranda is applicable. A prefatory word is in order to keep the constitutional question straight.

There is not — under the Fifth Amendment to the Federal Constitution 1 or under Article 22 of the Maryland Declaration of Rights 2 — any such thing as a right against self-incrimination. There is only a right against compelled self-incrimination. The distinction was elegantly made by former Chief Justice Weintraub for the Supreme Court of New Jersey in State v. McKnight, 52 N. J. 35, 52-53, 243 A. 2d 240 (1968): “There is no right to escape detection. There is no right to commit a perfect crime or t" an equal opportunity to that end.

The Constitution is not at all offended when a guilty man stubs his toe. On the contrary, it is decent to hope that he will. Nor is it dirty business to use evidence a defendant himself may furnish in the detectional stage .... [A]s to the culprit who reveals his guilt unwittingly ³⁶⁴ with no intent to shed his inner burden, it is no more unfair to use the evidence he thereby reveals than it is to turn against him clues at the scene of the crime which a brighter, better informed, or more gifted criminal would not have left. ... It is consonant with good morals, and the Constitution, to exploit a criminal’s ignorance or stupidity in the detectional process.” 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 decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his 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 . Miranda pointed out that all of the four cases being dealt with in that umbrella opinion “share salient features — incommunicado interrogation of individuals in a police-dominated ³⁶⁵ atmosphere ...” Ibid., at 445.

It pointed out that the major danger of the “in-custody interrogation” is that its incommunicado character obscures a later judicial determination of what really transpired. “An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today. The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado.” Ibid., at 445. “Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.” Ibid., at 448. It speaks of “ ‘privacy — being alone with the person under interrogation/ ” ibid., at 449, of the police tactic that the “subject should be deprived of every psychological advantage,” ibid., at 449, of an “atmosphere” that “suggests the invincibility of the forces of the law,” ibid., at 450, and of the psychological ploy of the police “[t]o highlight the isolation and unfamiliar surroundings . . .” ibid., at 450.

It speaks of the custodial interrogation as one where a suspect may be deprived of the moral support of family and friends, contrasting it with his home where “his family and other friends are nearby, their presence lending moral support,” ibid., at 450. “Even without employing brutality, the ‘third degree’ or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.” Ibid., at 455-456. “In the cases before us today, given this background, we concern ourselves primarily with this interrogation atmosphere and the evils it can bring.” Ibid., at 456. Miranda pointed out that the environment of the custodial interrogation was frequently designed to produce a confession. “It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation.” Ibid., at 457. Miranda made it very clear that the warnings it mandated ³⁶⁶ and the waiver it required were “employed to dispel the compulsion inherent in custodial surroundings.” Ibid., at 458.

The evil at which the prophylactic devices of Miranda were aimed was made very clear. “An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.” Ibid., at 461. The Supreme Court decisions, post -Miranda, have not deflected its initial thrust, in Mathis v. United States, 391 U. S. 1 , 88 S. Ct. 1503 , 20 L.Ed.2d 381 (1968), the warning and waiver requirements of Miranda were held to apply to a custodial interrogation by the police, where the questioned suspect was in custody (literally in jail) for another offense not connected with the subject of the interrogation. It was held that this latter fact did not alter the inherently coercive character of the custodial surroundings.

In Orozco v. Texas, 394 U. S. 324 , 89 S. Ct. 1095 , 22 L.Ed.2d 311 (1969), the warning and waiver requirements of Miranda were held applicable to a police interrogation conducted at the defendant’s home. In that case, four police officers burst into the suspect’s boarding house bedroom while he was asleep at 4 o’clock in the morning. One officer made it clear that the suspect “was not free to go where he pleased but was ‘under arrest’.” 394 U. S. at 325 . The Supreme Court found that the interrogation there was custodial in nature because “ [according to the officer’s testimony, petitioner was under arrest and not free to leave when he was questioned in his bedroom in the early hours of the morning.” Ibid., at 327.

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 ³⁶⁷ 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. In addressing a Miranda problem, a court has before it, four potential issues: the questions of 1) custody, 2) interrogation, 3) warnings and 4) waiver.

The first two questions deal with the applicability of Miranda ; the second two deal with compliance with Miranda. A court must ask: 1. Was there CUSTODY? 2. Was the statement under scrutiny made in response to INTERROGATION?

The answer to both of the foregoing questions must be in the affirmative before Miranda is even applicable. Only in the event that Custody and Interrogation are found to have been present does a court move on to consider the two questions determining whether there has been compliance with Miranda : 3. Were there adequate WARNINGS? 4. Was there an adequate WAIVER?

As we approach the analysis of the instant case, it may be helpful to make explicit the focus of our review: 1) The appellant and the appellee have commendably narrowed the issue before us. In looking at the admissibility of several admissions in this case, we are concerning ourselves exclusively with the question of whether there was a Miranda violation. We are not dealing with the broader issue of voluntariness. 2) We are concerned exclusively with the correctness of Judge Jones’s decision in admitting the several admissions into evidence. At the very outset of the trial, the jury was excused from the courtroom and a hearing was held before Judge Jones alone on the admissibility of the statements now in issue.

Two witnesses, Officer Robert Hall and Mrs. Ruby Cummings, were heard. This proceeding is recorded on pages 20 through 93 of the trial transcript. At the end of that hearing, Judge Jones made her ruling on the question of ³⁶⁸ admissibility and the jury was brought back into the room. Our review is confined to the facts developed at that hearing.

In order that the jury might give proper weight (or no weight at all) to the admissions, the same factual question was explored before them. Officer Hall testified during the State’s case in chief on the circumstances surrounding the giving of the admissions. During the defense case, Mrs. Cummings also again testified on this subject. In addition, the appellant, who had not testified on the subject during the admissibility hearing, gave testimony before the jury.

Although we are not aware of any significant discrepancies between the two versions, we are, on this issue, deliberately factoring out any testimony on this subject at the trial upon the merits in the presence of the jury as immaterial. 3 Although the ground may have been reploughed for other purposes at a later time, we are confined (and we so confine ourselves) to the adequacy of the first ploughing. 3) We are looking exclusively to the question of whether Miranda was applicable to the hospital room interview in this case. Because we conclude that it was not, we do not reach the question of whether Miranda was complied with. Under our analysis, any question of whether the appellant affirmatively requested a lawyer, on the one hand, or whether he waived any such possible request in voluntarily proceeding with the interview, on the other hand, is moot. We are looking primarily at the threshold question, “Was there Custody?”, and, in one auxiliary aspect, at the follow-up question of, “Was there Interrogation?” ³⁶⁹ The Facts in This Case On May 4, 1974, at approximately 7 p.m., a vehicular accident occurred in the 2600 block of Annapolis Road in Baltimore City.

A trailer-truck, owned by the appellant and occupied by him and two other men (Clarence Martin and Larry Hoyle), was northbound on Annapolis Road. Coming down a hill, it failed to negotiate a turn and slid into the southbound lane, striking a southbound Cadillac driven by Mrs. Rose Marie Davis and occupied by herself and nine other persons. Mrs. Davis’s daughter, Sandy Davis, aged four, died within the hour as a result of head injuries sustained in the collision. After striking the Cadillac, the truck continued to move to its left, hit a parked car^ collided with a fence and turned over on its side.

The appellant was removed from the cab of the truck and taken to the hospital. The posted speed in the 2600 block of Annapolis Road was thirty miles per hour. Officer Hall, investigating the accident, attempted to visit the appellant at the South Baltimore General Hospital on the night of the accident, but was unable to see him on doctor’s orders. Officer Hall returned to the hospital the following day, May 5, at approximately 12:15 p.m. and interviewed the appellant.

At issue are several admissions made by the appellant during the course of that interview. Was There Custody? We will discuss various details of the May 5th interview of the appellant at the South Baltimore General Hospital as they become relevant in considering the various factors that make for custody or lack thereof in a given interrogation. Our holding is that the interrogation was non-custodial in nature, so that Miranda is inapplicable and compliance therewith is moot.

A. 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 ³⁷⁰ law is that the questioriing 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 . In Tillery v. State, 3 Md. App. 142, 146-147 , 238 A. 2d 125, 127-128 (1968), we held that the absence of Miranda warnings in a hospital interrogation was immaterial because the interrogation was non-custodial. 4 The defendant there was not under police restraint. In State v. Zucconi, 50 N. J. 361, 235 A. 2d 193 (1967), the Supreme Court of New Jersey held that a hospital room questioning of a person suspected of having driven a car involved in a fatal accident was non-custodial.

In State v. District Court, 432 P. 2d 93 (Mont. 1967), an interrogation of a prime murder suspect where she was undergoing treatment for an overdose of sleeping pills was held to be non-custodial. In People v. Gilbert, 8 Mich. App. 393 , 154 N.W.2d 800 (1967), the police were investigating an automobile accident which had resulted in a death. They observed that the defendant smelled of alcohol, but they did not question him at the accident scene.

He was questioned, less than an hour later, in a hospital emergency room. He admitted having been the driver of the car; he also admitted being drunk. No Miranda warnings had been given. In holding that the interrogation was non-custodial, the court said, at 154 N.W.2d 801 : “The history of the transition from physical to more subtle psychological means of compulsion was traced in detail by the Court.

In each of the 4 cases consolidated for appeal in Miranda , the confession or admission was made after formal arrest and in a general atmosphere of psychological compulsion. Repeatedly the Court stressed the tactor of ‘incommunicado interrogation’ resulting in a ³⁷¹ ‘police-dominated atmosphere.’ The lengthy duration of the interrogation period was considered significant in several of the cases. The requisite ‘custodial interrogation’ must be interpreted in the light of the Court’s own emphasis upon the compulsive atmosphere in which the suspect is questioned. In the instant case the defendant was questioned as he freely walked about the hospital corridors and emergency room.

He was in no way isolated for questioning and the period of interrogation was of short duration. This Court will not extend the requirements of Miranda, supra, to the essentially different fact situation in the instant case.” In State v. Sandoval, 92 Idaho 853 , 452 P. 2d 350 (1969), a policeman and a prosecutor questioned an automobile manslaughter suspect, on whom the investigation had definitely focused, as he lay in his hospital bed. In holding the confrontation to have been non-custodial, the Supreme Court of Idaho said, at 452 P. 2d 355 : “Defendant was not under arrest; the authorities did nothing to restrain his freedom of action; the questioning took place in a hospital room; another patient was present. Clearly Sandoval was not in custody, either actually or constructively.

Hence the Miranda and Escobedo exclusionary rules are inapplicable.” In State v. Kelter, 426 P. 2d 500 (Wash. 1967), an automobile manslaughter suspect, on whom the investigation had focused, was interrogated in his hospital room where he was recovering from his injuries. In holding tht the interrogation was non-custodial, the Supreme Court of Washington said, at 501: “In the present case, there was no compelling atmosphere of in-custody interrogation in the questioning of the defendant in his hospital room; and no competent evidence was offered to show ³⁷² that the defendant was not in full possession of his faculties at this time; nor had the defendant been placed under arrest or otherwise restrained by the police in any manner.” In People v. Phinney, 22 N.Y.2d 288 , 239 N.E.2d 515 (1968), Chief Judge Stanley Fuld of the New York Court of Appeals held that a question put to an injured suspect in a hospital emergency room, the answer to which established that the boy was the driver of the car involved in an accident, was a non-custodial interrogation. He stated, at 239 N.E.2d 516 -517: “A person, not actually placed under arrest, is not deemed in custody when questioned by the police unless ‘the questioning takes place under circumstances which are likely to affect substantially the individual’s ‘will to resist and compel him to speak where he would not otherwise do so freely’.’ ... In the case before us, after speaking with the defendant’s father, the police officer asked the defendant a single question, wrote out a summons and left.

That was the extent of the interrogation and, quite obviously, it was not the sort of ‘incommunicado police-dominated atmosphere’ or custodial interrogation at which the Miranda rule is aimed.” And see Lamb v. United States, 414 F. 2d 250 (9th Cir. 1969) (“Lamb was not placed under arrest, or even told that he could not leave the hospital”); United States v. Quinones-Gonzalez, 452 F. 2d 964 (10th Cir. 1971); State v. Mitchell, 163 N.W.2d 310, 315-316 (Minn. 1969); State v. Lopez, 79 N. M. 282, 442 P. 2d 594, 598-599 (1968); State v. Hoskins, 193 N.W.2d 802, 813-814 (Minn. 1972); People v. Reeder, 276 N.E.2d 768 (Ill. App. 1971). B. The Time of Interrogation Another factor that bears upon the question of custody is whetner the interview is conducted during normal business hours or is conducted at an odd hour of the night. See Orozco ³⁷³ v. Texas, supra.

See also Zagel, Confessions and Interrogations After Miranda (Chicago, 1972) 24. The hospital interview in the present case was conducted in the middle of the day, at approximately 12:15 p.m. This fact, though not itself conclusive, helps tilt the interview in question toward the non-custodial side of the spectrum. C. Persons Present During Interrogation Miranda stresses the coercion inherent in being “isolated,” held “incommunicado,” and being “cut off from 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 . Officer Hall was accompanied to the appellant’s hospital room by Officer Custis. The fact that the two officers were in uniform does not render the interview custodial.

State v. Hall, 468 P. 2d 598 (Ariz. App. 1970); People v. Rodney P. 233 N.E.2d 255 (N.Y. 1967); State v. Meunier, 224 A. 2d 922 (Vt. 1966). The appellant’s wife and a third person were in the room when the officers arrived. Initially, they were asked to leave the room.

Within minutes, however, and before any interrogation took place, the officers learned that the lady in question was the appellant’s wife and immediately asked her back into the room. She came back and remained present for the entire interview. A number of courts have considered the presence of friends and relatives as indicative of non-custodial interrogation. Archer v. United States, 393 F. 2d 124 (5th Cir. 1968) (suspect’s husband); State v. Noriega, 433 P. 2d 281 (Ariz.

App. 1967) (suspect’s family); State v. Tellez, 431 P. 2d 691 (Ariz. App. 1967) (suspect’s friends); Stout v. State, 426 S.W.2d 800 (Ark. 1968) (suspect’s wife); People v. Butterfield, 65 Cal. Rptr. 765 (Cal. App. 1968) (suspect’s mother); State v. Davis, 157 N.W.2d 907 (Iowa 1968) (doctor and nurses); People v. Allen, 281 N.Y.S.2d 602 (N.Y.App. 1967) (suspect’s family); Commonwealth v. Barclay, 240 A. 2d 838 (Pa.App. 1968) (suspect’s wife and other persons); ³⁷⁴ United States v. Owens, 431 F. 2d 349 (5th Cir. 1970) (friends); State v. Largo, 473 P. 2d 895 (Utah 1970) (school counselors).

Maryland has considered the presence of family or friends as a factor bearing on the issue of custody vs. non-custody. Jones v. State, 2 Md.App. 429, 432 , 234 A. 2d 900 (1967) (suspect’s girlfriend); McFadden v. State, 1 Md. App. 511, 519 , 231 A. 2d 910 (1967) (suspect’s common-law wife). Conversely, the deliberate removal of a suspect from the presence of his family and friends tends to support a finding of custody. Commonwealth v. Sites, 235 A. 2d 387 (Pa. 1967); cf. Pemberton v. Peyton, 288 F. Supp. 920 (E.D.Va. 1968).

And see Zagel, op.cit., 24-25. There was simply no effort in the present case to sweep the appellant into an unfamiliar, isolated or incommunicado setting, cut off from the reassuring presence of his wife. D. The Indicia of Formal Arrest The existence of physical restraint has almost invariably led to a finding of custody. United States v. Averell, 296 F. Supp. 1004 (E.D.N.Y. 1969); State v. Saunders, 435 P. 2d 39 (Ariz. 1967); People v. Connor, 75 Cal.

Reptr. 905 (Cal.App. 1969); People v. McKay, 287 N.Y.S.2d 795 (N.Y.App. 1968); Commonwealth v. Moody, 239 A. 2d 409 (Penn. 1968); Roybal v. People, 496 P. 2d 1019 (Colo. 1972). In Myers v. State, 3 Md. App. 534, 538 , 240 A. 2d 288 (1968), Chief Judge Murphy held for this Court that placing a suspect in a police car and interrogating him as that car moved toward police headquarters constituted such physical restraint as to amount to custody within the contemplation of Miranda. Myers cited Gaudio v. State, 1 Md. App. 455, 468 , 230 A. 2d 700 (1967), which had noted “that the evils with which the Miranda court was primarily concerned were: (1) the holding of a defendant incommunicado in an isolated setting; (2) sweeping him from familiar surroundings into police custody; (3) surrounding him with antagonistic forces; and (4) subjecting him to techniques of persuasion.” 3 Md. App. at 537. ³⁷⁵ Conversely, the absence of physical restraint tends to indicate non-custody. People v. Merchant, 67 Cal.

Rptr. 459 (Cal. App. 1968); United States v. Gallagher, 430 F. 2d 1222 -1224 (7th Cir. 1970); People v. Cartwright, 182 N.W.2d 811 (Mich.App. 1970); People v. Burris, 273 N.E.2d 605 (Ill. 1971); People v. Robinson, 177 N.W.2d 234 (Mich. App. 1970). In the present case, there was no physical restraint imposed by the police whatsoever.

The appellant was bedridden, to be sure, but this was an internal circumstance and not an external restraint. The appellant had not been charged or arrested. There was no guard placed on the door. The police did not in any way interfere with his freedom of movement or his autonomy within his hospital room.

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, Hicks v. United States, 382 F. 2d 158 (D.C. Cir. 1967); People v. Ellingsen, 65 Cal. Rptr. 744 (Cal. App. 1968). In the instant case, there was no hint of fingerprinting, photographing or any other booking procedure.

It has similarly been held that telling a suspect that he is under arrest indicates custody for Miranda purposes. Duckett v. State, 3 Md. App. 563 , 240 A. 2d 332 (1968); Franklin v. State, 6 Md. App. 572 , 252 A. 2d 487 (1969). And see Johnson v. Commonwealth, 160 S.E.2d 793 (Va. 1968); United States v. Diaz, 427 F. 2d 636 (1st Cir. 1970); State v. Myers, 487 P. 2d 663 (Ore.App. 1971). Conversely, the fact that an officer does not tell a suspect that he is under arrest is a circumstance tending to negate custody.

State v. Caha, 165 N.W.2d 362 (Neb. 1969). In the present case, the defendant was not under arrest, was never told that he was under arrest and had no reason to believe that he was under arrest. There were, in short, no indicia of formal arrest. E. The Gratuitous Giving of Miranda Warnings Notwithstanding our conclusion that the hospital interview here in question was non-custodial within the contemplation of Miranda , Officer Hall did give Miranda ³⁷⁶ warnings to the appellant.

This raises the question of whether the gratuitous and unnecessary giving of Miranda warnings will operate to convert an otherwise non-custodial situation into a custodial one. The answer is no. In dealing with a similar situation in United States v. Owens, 431 F. 2d 349 (5th Cir. 1970), the United States Court of Appeals said, at 352: “By gratuitously advising Owens of his rights, the agent in no way conferred additional rights on him. The statements that were made were voluntarily offered in response to proper questions in an atmosphere free from actual or implied coercion and were therefore properly admitted into evidence.” Under similar circumstances in United States v. Akin, 435 F. 2d 1011 (5th Cir. 1970), the Court of Appeals said, at 1013: “The only basis suggested by appellant for finding that there was ‘custodial interrogation’ in this case is that the FBI did give some warning to appellant prior to questioning him.

Thus, appellant asks, ‘If this were not a custodial interrogation, why would the agents give warnings?’ We cannot accept appellant’s suggestion. To rule that an FBI agent’s extra-cautious efforts to inform a person his constitutional rights converts an otherwise non-custodial situation into ‘custodial interrogation’ could easily work to defeat one of the Supreme Court’s main objectives in Miranda , the objective of encouraging law enforcement agencies to develop ways of protecting individual rights that are in harmony with effective law enforcement. We conclude, therefore, that a custodial situation cannot be created by the mere giving of modified Miranda warnings.” And see State v. McLam, 478 P. 2d 570 (N.M.App. 1970). F. The Length and Mood of the Interrogation The cases hold that the brevity of an interrogation, the ³⁷⁷ friendly demeanor of the officer and the short and neutral nature of the inquiries all tend to negate the notion of custody.

Allen v. United States, 390 F. 2d 476 (D.C.Cir. 1968), modified 404 F. 2d 1335 ; Arnold v. United States, 382 F. 2d 4 (9 Cir. 1967); United States v. Gibson, 392 F. 2d 373 (4th Cir. 1968); United States v. Thomas, 396 F. 2d 310 (2d Cir. 1968). Conversely, lengthy interrogation tends to indicate custody. People v. Ryff, 284 N.Y.S.2d 953 (N.Y.App. 1967); State v. Skiffer, 218 So. 2d 313 (La. 1969); Commonwealth v. Banks, 239 A. 2d 416 (Pa. 1968). The use of accusatory and leading questions tends to establish custody.

State v. Evans, 439 S.W.2d 170 (Mo. 1969). Close and persistent questioning