Finke v. State

BLOOM, Judge. Appellant, Allen Glenn Finke, was convicted by a jury in the Circuit Court for Anne Arundel County of felony murder. This court in an unreported per curiam opinion (Finke v. State, No. 899, September Term, 1980, decided June 1, 1981) reversed the conviction and remanded the case for a new trial because the lower court had failed to make a pre-trial determination on Finke’s motion to suppress an inculpatory statement given by him to the police. Md.Rule 736f.

Appellant was retried in the same court and was again convicted by a jury of felony murder. On this appeal he asserts: I. The evidence was insufficient to sustain the conviction for felony murder.

II

The trial court erred in denying appellant’s motion to suppress his oral statements.

III

Appellant was denied due process of law when the trial court considered the accuracy of his oral admissions in denying his motion to suppress them.

IV

The trial court erred by receiving into evidence the extrajudicial statements given to police by State witness Donald Blevins. V. The trial court erred by allowing the State to read to the jury, as part of its case-in-chief, the testimony appellant gave at his first trial. ⁴⁵⁸ VI. The trial judge erred in refusing to allow a defense psychiatric expert to give his opinion of the voluntariness of appellant’s admissions.

VII

The trial court erred by admitting evidence of appellant's prior, unrelated criminal activity.

VIII

The trial court erred in denying appellant’s request for a change in venue. FACTS On Friday, June 8, 1979, the appellant’s aunt, 61-year-old Leonette Shilling, was found stabbed to death in her home on Fort Smallwood Road in Riviera Beach. Mrs. Shilling’s body was discovered by her husband, Calvin S. Shilling, when he returned to the home some time after 2 p.m. 1 She had been stabbed twelve times in the neck, back, chest, and hand. Several of the wounds, which varied in depth from one to three inches, were lethal.

It appeared that Mrs. Shilling had been taking a nap immediately prior to being attacked. There were blankets on the living room couch, her bedroom slippers were beside the couch, and her three-year-old grandson, Michael Somerfield, for whom she was babysitting, was found asleep and unharmed on the couch. Evidently Mrs. Shilling was murdered only a short time before her husband arrived home. One of the Shillings’ married daughters, Patricia Sayers, testified that she had talked with her mother by telephone from 1:40 to approximately 1:50 to 1:55 p.m. and that there was no indication that anyone other than the grandson was in the house with her mother at the time.

When Mr. Shilling returned to the house, he found the front door unlocked and ajar. He testified that this door was kept locked and was rarely used, as the family and visitors customarily entered the house through the kitchen door located at the side of the house. ⁴⁵⁹ He also testified that he and his wife had planned to leave June 6 for a five day trip to Las Vegas but that the trip had been postponed at the last moment. The Shillings owned two cars, a Lincoln Continental and a Chevrolet. Mr. Shilling testified that when he and his wife traveled they drove the Lincoln to the airport and left the Chevrolet parked beside the house.

Generally, Shilling drove the Chevrolet to work; but on the morning of the murder he drove the Lincoln, leaving the Chevrolet parked beside the house. Although there were substantial sums of money in various locations in the house, including money on top of a dresser in the bedroom, it appeared that no money or anything of value had been taken. The evidence that implicated appellant in the murder came principally from two sources: (1) the testimony of Donald Blevins, his friend and roommate, and (2) the statements and admissions which the appellant made during police interrogation, as related by the officers who conducted the interrogation. Blevins, age 24, testified that he and the appellant, age 26, had been friends for many years.

They lived together, sharing a house with Blevins’ brother and sister-in-law, and worked together as carpenters for a construction company. On the night before the murder, the two had been out until very late, drinking and playing pool at a bar, and had arrived home at approximately 4 a.m. Suffering the effects of their activities of the previous night, Blevins and the appellant overslept and did not report for work. Blevins testified that they arose around noon, dressed, and then drove in his truck to the Three B’s Bakery where they had breakfast.

Afterwards, they drove around the neighborhood, visiting various acquaintances in an attempt to obtain some marijuana. Blevins indicated that in doing so they passed by the Shilling house at least once. Unable to locate a marijuana source, the two then drove to the parking lot of the Acme grocery store on Fort Smallwood Road, which is located behind and to one side of the Shilling house. There Blevins, who was driving, parked the truck in a space facing in the general direction of, and 200 to 300 feet from, the rear ⁴⁶⁰ of the Shilling house.

Blevins said they arrived there between 1:30 and 2:30 p.m.; he also claimed that he did not recall why they had driven to the parking lot or whose idea it was to do so. After they had been there for a few minutes, Blevins testified, the appellant, without saying where he was going, climbed out of the cab and walked towards the front of the truck. Blevins claimed that he did not observe where the appellant went because his view was blocked by the newspaper he was reading. Approximately 10 minutes later the appellant returned, saying only, “let’s go,” and they then drove from the Acme lot to the home of appellant’s father.

There they spent the remainder of the afternoon working on appellant’s Ford van, which was inoperable, preparing to rebuild the engine. Blevins testified that the appellant had bought the van, which had broken down a month prior to the murder, with money borrowed from the appellant’s father and that the appellant did not then have the money to pay for the repairs. Blevins also testified that he and the appellant each owed one Russell Sikorski $30 for marijuana. 2 Finally, Blevins testified that the appellant owned a penknife with a blade 3 inches in length and approximately lh inch in width and that he believed the appellant had been wearing cut-off jeans on the day of the murder. Joseph Folio, a clerk at the Acme grocery store, identified photographs of the appellant and Blevins as being those of two men he found in the men’s room of the store some time before noon with a pie taken from the store shelves.

He did not report the incident to police until after he learned that an arrest had been made in the Shilling homicide. John Williams Simpson, Jr., the manager of the clothing store located directly behind the Shilling house, testified that he observed Blevins’ truck parked in the space identified by ⁴⁶¹ Blevins some time between noon and 2 p.m. on the afternoon of the murder. The appellant was first questioned by police concerning the killing one month after it occurred. On the afternoon of July 10, 1979, Detective Thomas Mock of the Anne Arundel County Police went to the appellant’s residence and asked the appellant to accompany him to the Millersville Station for questioning.

The appellant at first demurred, saying that he was scheduled to play baseball that evening but agreed when Mock told him that the questioning would not take long and that after the interview Mock would drive him to the game. After arriving at the station at 6:40 p.m., the appellant was turned over to Detective James Moore, who was in charge of the investigation into the Shilling murder. Detective Moore informed the appellant of his Miranda rights and told him that he was not under arrest and could leave at any time. The appellant was then asked to describe his activities on the date of the murder.

He said that he had been out late the night before; that he and Blevins had slept in that morning; that he had awakened, dressed and driven around looking for marijuana; 3 that they had had breakfast at the bakery from 1:30 to 2:30 p.m.; and that afterwards they had driven to his father’s house to work on his van. He also said that they passed by the Shilling house two or three times while looking for marijuana and that, although he had spent considerable time there when he was younger, he had not been in his aunt’s house for more than a year and a half. The questioning continued throughout the evening with the appellant indicating that he was unable to remember all the events of the day in question. Sergeant Richard Davis said he questioned appellant alone from about 9:45 p.m. to 11:50 p.m. on July 10, 1979, at the Millersville station. 4 During ⁴⁶² this interrogation appellant repeated the recitation of what he had done on June 8 and denied that he had been in the Shilling house or that he had any personal knowledge of or involvement in the murder.

In an attempt to aid his recall, it was suggested that the appellant undergo hypnosis. He agreed and a hypnotist, Dr. Richard Ittner, was brought to the station. During the hour-long session which followed, however, Ittner was unable to hypnotize the appellant, and he merely repeated the account of his activities which he had given earlier. Around midnight the appellant was taken into the hallway of the station and seated on a bench.

The interrogation recommenced with Moore telling the appellant that the police knew that he was the killer and asking him to recall what had happened. The appellant replied that he could not. The appellant was also told by police that witnesses had seen him enter and leave the Shilling house, that his fingerprints had been found at the scene, that Michael Somerfield had identified him as the killer, and that two people had called the Shilling house around the time of the murder and would identify him as the person who had answered the phone. All of these statements were false.

Thereafter, appellant was interrogated intermittently by Detectives Moore, March and Mock. Lieutenant Jerome Bozek listened to portions of the interrogation but did not participate in the questioning. While being questioned by Detective Mock and after he and Mock had discussed religion and the religious implications of murder and said an act of contrition together, appellant began to recall details which he had previously been unable to remember. He told Mock, “I must have been there.

I must have done it, otherwise I couldn’t — I wouldn’t remember some of the things I remember.” Then he said, “Well, I don’t really remember anything but I’m trying to and I’m getting little flashbacks.” When pressed by Detective Mock to relate those flashbacks, he said he remembered that on the day his aunt was killed he and Blevins had driven to the Acme parking lot and that he climbed out of the truck and walked away while Blevins was reading the paper. He recalled the driveway leading from the Acme ⁴⁶³ parking lot to the rear of the Shilling house along the back driveway, a pile of gravel and either a backhoe or frontloader behind the house. With reference to the Shilling garage, he recalled that it had two bays — the left bay was empty with the door open; the right bay door was closed and a small pump truck was parked in that bay. Appellant claimed that he was unable to remember actually entering the house but guessed his aunt answered the door or opened the door.

When asked what he remembered about the interior, he described the kitchen table as covered with business papers and remembered seeing a stack of newspapers. Appellant recalled closing sheer curtains hanging at the kitchen window, the presence of clean dishes draining in the left side of the sink, a baby’s bottle on the counter, frozen meat wrapped in clear plastic thawing on a plate to the right of the sink, and a child’s toy on the kitchen floor. He also recalled that the television was on with the volume turned down very low and that clean clothes were lying on a bed in one of the bedrooms. He described these recollections as “flashes,” images which appeared in his mind as he tried to remember.

He said repeatedly that he couldn’t recall actually killing his aunt but made numerous statements such as “I know I did it but I can’t make myself tell you I did, I keep blanking it out” and “why do I recall these things if I wasn’t in there, why don’t you just go ahead and charge me?” At approximately 4:00 a.m., the interrogation ceased. 5 Although the appellant was told to go home, 6 he refused to ⁴⁶⁴ do so, stating that he did not wish to leave until he was certain whether he had committed the murder. He was therefore given a blanket and allowed to sleep on a couch. Later that morning he consented to a search of his room in the house he shared with Blevins. During the search, officers seized two pairs of cut-off jeans, one of which was determined to be stained with human blood. 7 The evidentiary value of the appellant’s statements lay in the fact that every detail which he recalled corresponded to the scene described by the officers and firemen who arrived at the Shilling house immediately after the homicide.

They testified that when they entered the house they found the television on with the volume turned down very low, the kitchen table covered with business papers and documents, a stack of newspapers, dishes draining on the left side of the sink, a baby’s bottle on the counter, frozen crabs and crab cakes wrapped in clear plastic thawing on a plate to the right of the sink, closed sheer curtains at the kitchen window, a child’s toy on the kitchen floor, and clean clothes lying on a bed in a bedroom. They also testified that they found cash and jewelry on top of a bedroom dresser. Outside of the house they found that the left bay door of the garage was open and the bay empty. They found a small pump truck parked in the right bay and the bay door closed.

They also found a pile of gravel and a parked backhoe or frontloader behind the house. Every officer who questioned ⁴⁶⁵ the appellant was asked whether he had prompted the appellant or in any way described the crime scene to him; each stated that he had not. The appellant also made an inculpatory statement to Charles F. Shilling, the victim’s son, who visited the appellant at the County Detention Center two weeks after the arrest. He told Shilling that he remembered parking in the Acme lot and approaching the house from behind but said repeatedly that he was not sure whether he had committed the murder.

Appellant did not testify at the second trial. Over his objection his testimony at the first trial was admitted into evidence. During that testimony he had repeated the story he had originally told the police when he was questioned on July 10, claiming that he and Blevins had been eating breakfast at the bakery from 1:30 to 2:30 p.m. on June 8 and that they had driven directly from there to his father’s home. He had explained that the details he described to police concerning the Shilling house had merely been suppositions on his part based on what he remembered about the house and the Shillings’ habits from the time he had spent in their house when he was younger.

He had stated that he was certain that he had not killed his aunt, although conceding he had not been certain when questioned by police on the night of July 10-11. He had explained that he did not think the police would lie to him about what evidence they possessed and, therefore, he felt he must be guilty. On cross-examination he had denied that he had ever been in the Acme store located behind the Shilling house and had denied he had been in the Acme parking lot on the afternoon of the murder. I. SUFFICIENCY OF THE EVIDENCE The State’s sole response to appellant’s argument that the evidence was insufficient to sustain his conviction is an ⁴⁶⁶ assertion that our determination on the prior appeal that the evidence was sufficient to justify remanding the case for a new trial “is the law of the case.” We flatly reject that proposition.

Even if it were reasonably practical to do so, we would not be disposed to re-examine and review the entire record of the first trial and compare it with the record of the second trial to determine if the evidence was precisely the same at both trials. Consequently, a determination that the evidence adduced at the first trial was sufficient to sustain a conviction could not possibly be binding, as the law of the case, in the second trial. In determining whether the evidence was sufficient to sustain appellant’s conviction, we must inquire “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 448 U.S. 307 , 319, 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979) (emphasis in original). See also, State v. Rusk, 289 Md. 230, 240 , 424 A.2d 720 (1981).

Appellant was convicted of felony murder, the elements of which are the commission of an underlying felony and a death occurring during the perpetration of that felony. State v. Frye, 283 Md. 709, 713 , 393 A.2d 1372 (1978); Newton v. State, 280 Md. 260, 269 , 373 A.2d 262 (1977). The only underlying felony was statutory daytime housebreaking, Md.Ann.Code Art. 27, § 30(b), which provides: Any person, his aiders, abettors and counsellors, who shall be convicted of the crime of breaking a dwelling house in the daytime with intent to commit murder or felony therein, or with intent to steal, take or carry away the personal goods of another of any value therefrom, shall be guilty of a felony, and upon conviction thereof shall be sentenced to the penitentiary for not more than ten years. Appellant does not challenge the sufficiency of the evidence to support the jury’s finding that he killed his aunt.

He asseverates that there was insufficient evidence of both ⁴⁶⁷ the breaking and the intent elements of the underlying felony. The breaking of a dwelling house or other structure, within the meaning of that term as applied to burglary and related statutory crimes, may be actual, as where physical force is applied, or constructive, as where entry is gained through fraud or trickery. It may involve simply lifting a latch or opening a door closed by its own weight. Jones v. State, 2 Md.App. 356, 360 , 234 A.2d 625 (1967); Reagan v. State, 2 Md.App. 262, 267-68 , 234 A.2d 278 (1967).

Turning a doorknob and opening a closed door or merely further opening a door left ajar involves sufficient force to constitute an actual breaking, provided it is a trespassory act. “There is no ‘breaking’ if a person has a right to enter or if he enters with the consent of the owner.” Martin v. State, 10 Md.App. 274, 279 , 269 A.2d 182 (1970) (citations omitted). In Reagan and Edwards v. State, 6 Md.App. 477 , 251 A.2d 615 (1969), a man returned to his apartment early one afternoon, unlocked the front door and entered to find three strangers inside, one of whom stated that he was working in the apartment. Although there was evidence that one balcony window as well as the front door was closed, there was no testimony that the apartment had been “secured” or that other doors and windows were closed when the victim left his apartment earlier. In the absence of evidence of physical tampering with any part of the building, we held that the evidence was insufficient to show a breaking.

In the case sub judice there is no direct evidence as to how or under what circumstances Finke entered the Shilling house, other than his statement to Detective Mock that he guessed his aunt let him in. The finding of a trespassory entry, or breaking, essential to the verdict could only have been reached by deduction or inference from evidence of other facts. Since the conviction is based upon circumstantial evidence, we are confronted at the outset with two questions: (1) What level of proof is required to support a conviction based ⁴⁶⁸ on circumstantial evidence? (2) If a necessary element of the offense can be established only by circumstantial evidence, what level of proof is required to establish it?

The answers to both questions involve an interplay between two elusive concepts. One, the speculative nature of circumstantial evidence. Two, the requirement that evidence, to be legally sufficient to sustain a conviction, must establish guilt beyond a reasonable doubt. Jackson v. Virginia, supra.

It is, of course, beyond dispute that circumstantial evidence may be sufficient to sustain a conviction. Veney v. State, 251 Md. 182 , 246 A.2d 568 (1968). Circumstantial evidence “embraces all offered evidentiary facts not being assertions from which the truth of the matter asserted is desired to be inferred.” 1 Wigmore, Evidence § 25 (3d Ed.1940). Stated in other terms, “[c]ircumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experiences.” Hall v. State, 32 Md.App. 49, 53-54 , 358 A.2d 632 (1976). “[T]here may be drawn an inference of one fact from proof of another or others if there is some rational connection between the fact or facts proved and the ultimate act inferred so that the inference drawn from the proof is not so farfetched as to be arbitrary.” Anglin v. State, 244 Md. 652, 657 , 224 A.2d 668 (1966).

See also, Lindsay v. State, 8 Md.App. 100, 108 , 258 A.2d 760 (1969). The burden of persuasion that rests with the State in a criminal proceeding is expressed in terms of proof beyond a reasonable doubt. Numerous attempts have been made to quantify “this elusive and undefinable state of mind.” 9 Wigmore, Evidence, § 2497 (Chadbourn rev. 1981). These ventures have occasionally received hostile treatment. “What possible end can such a heaping up of indefinable terms serve, but to confuse and baffle rather than enlighten and aid the average juror?” Id. quoting May, C.J., Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases, 10 Am.L.Rev. 642 (1876). ⁴⁶⁹ Predictably, the union of circumstantial evidence and proof beyond a reasonable doubt has resulted in inconsistent, and often conflicting, pronouncements of law.

One commentator declares that “[t]o justify a conviction of crime on circumstantial evidence alone, the inferences to be derived from the established circumstances must be inconsistent with any reasonable theory of innocence.” 4 Jones on Evidence, § 29:6 (6th Ed. 1972). Conversely, the United States District Court for the District of Maryland has held that the State is not required to “exclude every reasonable hypothesis consistent with innocence of the accused, even when the evidence is entirely circumstantial.” Coates v. State of Maryland, 436 F.Supp. 226, 230 (D.Md.1977) (citation omitted). An analysis of the principal cases in the Court of Appeals and in this court in which this subject has been addressed indicates that the law in Maryland has undergone a gradual change from the proposition expressed by Professor Jones to the position stated by the District Court. In Shelton v. State, 198 Md. 405 , 84 A.2d 76 (1951), the Court of Appeals held that the evidence presented at trial was legally sufficient to sustain the conviction of the owner-operator of a bar for promoting and being concerned in carrying on a lottery.

At trial the State showed through the following evidence that a numbers game was being operated in the bar. The bartender had accepted a numbers slip and a dollar bill from a police informer. Several pads of the same size as the number slips were found on the cash register. Furthermore, the previous day’s winning number was prominently displayed on the mirror behind the bar.

The appellant bar owner argued that the evidence in the case was not legally sufficient to satisfy its submission to the jury. The Court of Appeals defined the law as follows: In a criminal case the fact must be shown or the inference supported beyond a reasonable doubt or to a moral certainty, or a reasonable doubt of an opposite fact must be created. Before a verdict of guilty is justified, the circumstances, taken together, must be inconsistent with, or ⁴⁷⁰ such as to exclude, every reasonable hypothesis or theory of innocence. Id. at 412 , 84 A.2d 76 (citations omitted).

The Court rejected the appellant’s arguments, holding that “there can be no reasonable doubt that the numbers game was being operated openly and notoriously in appellant’s bar.” Id. at 413 , 84 A.2d 76 . Brown v. State, 222 Md. 290 , 159 A.2d 844 (1960), involved the slaying of a police officer by a suspect in the officer’s custody. The appellant was walking with the officer through an alley leading to the rear of the Salisbury City Hall. Two girls, who were walking nearby, testified at trial that the appellant shouted, “Hey, you,” and then produced a gun from inside his coat.

The girls said the officer turned around and reached for the gun. The girls then hid behind a building and, after hearing a single shot fired, went back into the alley to see the appellant running from the alley with the gun in his right hand. The officer died a short time later. The gun was still in Brown’s possession when he was arrested.

A ballistics expert identified a bullet and shell found in the alley as coming from Brown’s gun. Furthermore, the expert testified that the gun could not have been accidentally discharged without a pull on the trigger. The appellant contended that the trial court was in error by refusing to grant his prayer. The proposed prayer, in part, would have instructed the jury that “in order to justify the inference of guilt from such [circumstantial] evidence, the existence of the inculpatory facts must be absolutely incompatible with the innocence of the accused and insusceptible of explanation upon any other hypothesis than that of his guilt.” Id. at 295 , 159 A.2d 844 .

The Court held that such an instruction was not an accurate description of the law. [W]hen guilt is based solely upon circumstantial evidence, the circumstances, taken together, must be inconsistent with, or such as to exclude every reasonable hypothesis or ⁴⁷¹ theory of innocence. Vincent v. State, 220 Md. 232, 237 , 151 A.2d 898 . The Maryland rule is, we think, correctly stated in Vincent , but it is a far cry from the postulates contained in the requested prayer. The prayer would permit an inference of guilt upon circumstantial evidence only when the existence of the inculpatory facts is absolutely incompatible with the innocence of the accused and insusceptible of explanation upon any other hypothesis than that of his guilt.

This would just about require proof of guilt in criminal cases to the degree of mathematical precision; a degree of proof that has never been deemed essential in Maryland, nor, insofar as it has come to our attention, elsewhere. Id. at 296 , 159 A.2d 844 (emphasis in original). Thus, the Court rejected appellant’s arguments and held that the trial court committed no error in refusing the instruction. In Nichols v. State, 5 Md.App. 340 , 247 A.2d 722 (1968), this court carefully analyzed the test of legal sufficiency of circumstantial evidence.

Nichols had been convicted of assault upon Seymour Goldstein and his wife and their children. Mr. Goldstein represented the appellant’s wife, who was also Mr. Goldstein’s secretary, in a divorce proceeding. Evidence showed that appellant had told Mr. Goldstein that if he did not fire Mrs. Nichols and cease to represent her, then appellant would “pick [him] off with a rifle.” Id. at 344 , 247 A.2d 722 . On October 30, 1966, at approximately 3:00 a.m., Mr. Goldstein received a phone call from a person who identified himself as “Vonnie’s husband, Robert Nichols ...” Id.

The caller told Mr. Goldstein, “I am getting tired of fooling around with this thing in court. I am going to pick you off with a high-powered rifle.” Id. At approximately 4:00 a.m. the Goldstein house was fired upon with three bullets entering the residence. The State relied upon the above evidence, together with other circumstantial evidence.

Appellant ar ⁴⁷² gued that the evidence was not legally sufficient to sustain his assault convictions. After reviewing the decisions of the Court of Appeals in Shelton, Vincent, and Brown , we stated that “[n]o greater degree of certainty is required when the evidence is circumstantial than when it is direct, for in either case the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused.” Id. at 350 , 247 A.2d 722 . We noted that “[p]roof of guilt beyond all doubt had never been required.” Id. at 351 , 247 A.2d 722 (citation omitted). “[Circumstantial evidence need not be such that no possible theory other than guilt can stand. * * * It is not necessary that the circumstantial evidence exclude every possibility of the defendant’s innocence, or produce an absolute certainty in the minds of the jurors. The rule does not require the jury to be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant’s guilt.” 3 Wharton’s Criminal Evidence (12th Ed.1955) § 980, p. 477.

While it must afford the basis for an inference of guilt beyond a reasonable doubt, it is not necessary that each circumstance, standing alone, be sufficient to establish guilt, but the circumstances are to be considered collectively. 1 Underhill’s Criminal Evidence (5th Ed.1956) § 17, p. 23 and p. 25. Id. at 351, 247 A.2d 722 . The court concluded that the evidence was sufficient to sustain the assault convictions. Two years later in Metz v. State, 9 Md.App. 15 , 262 A.2d 331 (1970), we found it necessary to explain our decision in Nichols .

Metz had been convicted of assaulting his wife with the intent to maim, disfigure or disable her. He argued that the evidence was insufficient to sustain his conviction in that it was solely circumstantial in nature. Again called upon to consider the sufficiency of circumstantial evidence, we acknowledged that we had explained the test and its history in Nichols . But, after reviewing our ⁴⁷³ decision in Nichols , we were “constrained to conclude that the language impressed upon the general test for the sufficiency of the evidence when the evidence is solely circumstantial does not, in fact, refine the general test.” Id. at 22, 262 A.2d 331 .

Concluding that the only distinction between the “solely circumstantial” test of Nichols and the general “beyond a reasonable doubt” test was a semantic one and not a substantive one, we stated what we saw as the proper test as to the sufficiency of evidence: To be sufficient in law to justify a conviction, the admissible evidence adduced must show directly, or circumstantially, or support a rational inference of, the facts to be proved from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. Id. at 23, 262 A.2d 331 . As noted in footnotes in both Nichols and Metz, the United States Court of Appeals for the Fourth Circuit, citing the Supreme Court in Holland v. United States, 348 U.S. 121 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954), has held that circumstantial evidence “is, of course, sufficient to support the verdict, although it does not exclude every reasonable hypothesis consistent with innocence.” United States v. Ragland, 306 F.2d 732, 734 (4th Cir.1962). In Dorsey v. State, 9 Md.App. 80 , 262 A.2d 591 (1970), the accused requested an instruction to the effect that “[bjefore a verdict of guilty is justified, the circumstances taken together, must be inconsistent with, or such as to exclude every reasonable hypothesis or theory of innocence.” Id. at 89 , 262 A.2d 591 .

We acknowledged that such language “has been approved in the past, but as applicable, in any event, only when the evidence was solely circumstantial.” Id. (footnote omitted). Since there was direct evidence of both corpus delicti and criminal agency, we found no error in the refusal to grant the requested instruction, citing Metz for the test of sufficiency of the evidence. ⁴⁷⁴ In Graham v. State, 13 Md.App. 171 , 282 A.2d 162 (1971), the appellant argued “that since the evidence presented by the State was solely circumstantial, guilt can only be established if every other reasonable hypothesis of innocence is excluded.” Id. at 178 , 282 A.2d 162 . We rejected that proposition. “[T]his argument, which at times has assumed the dimensions of a litany, does not accurately reflect the law.

See Metz v. State, 9 Md.App. 15 [ 262 A.2d 331 ]. Proof of guilt beyond all doubt has never been required, even in the most serious criminal cases. Pettis v. State, 2 Md.App. 651, 653 [ 236 A.2d 429 ].” Id. at 178-79 , 282 A.2d 162 . Affirming the convictions, we held that “[u]nder the totality of circumstances . . . there was ample evidence from which the jury could find the appellant guilty of murder in the first degree and guilty of armed robbery.” Id. at 180 , 282 A.2d 162 .

Judge Orth, who had authored the Nichols, Metz and Dorsey opinions, speaking for the court in Young v. State, 14 Md.App. 538 , 288 A.2d 198 (1972), again had an opportunity to clarify the decisions in Nichols and Metz . We discussed the so-called circumstantial evidence rule at length in Nichols v. State, 5 Md.App. 340 [ 247 A.2d 722 ], indicating that perhaps it did not mean precisely what it appeared to say. In Metz v. State, 9 Md.App. 15, 23 [ 262 A.2d 331 ] we said flatly that “ * * * the test for sufficiency is the same whether the evidence be direct, circumstantial, or provided by rational inferences therefrom.” Id. at 558, 288 A.2d 198 . Young also restated our position in Graham , declaring “that the statement that for evidence solely circumstantial to be sufficient to convict, the circumstances, taken together, must be inconsistent with, or such as to exclude every reasonable hypothesis or theory of innocence, does not accurately reflect the law....” Id. at 558, 288 A.2d 198 .

See also, Dove v. State, 47 Md.App. 452 , 423 A.2d 597 (1980). The principle expressed in Metz and Nichols had been adopted earlier by the United States Supreme Court in Holland v. United States, supra. In Holland, the Govern ⁴⁷⁵ ment relied solely upon circumstantial evidence to show that the defendants had willfully attempted to evade their income taxes. The petitioners argued before the Court that the trial judge’s jury instructions were erroneous in failing “to instruct that where the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt.” Id. 348 U.S. at 139 , 75 S.Ct. at 137 .

The Court recognized that some support for that position could be found in some lower court decisions. However, the Court rejected petitioners’ argument holding that “the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect. . . . ” Id. at 139-140 , 75 S.Ct. at 137 (citations omitted). The Supreme Court re-embraced Holland in Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). There the question concerned the proper level of review by a federal habeas corpus court when it reviews the sufficiency of the evidence of a state court conviction.

This inquiry was made in light of In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970). The Court held that “the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilty beyond a reasonable doubt.” Id. 443 U.S. at 318 , 99 S.Ct. at 2788 (footnote omitted). The holding, however, was of little consolation to Jackson. He argued that the above standard, when applied to the record, could not support his conviction, contending that the uncontradicted evidence supported a series of inferences which supported his claim of self-defense and thus innocence.

The Court rejected the argument. “Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner’s challenge be sustained. That theory the Court has rejected in the past. ⁴⁷⁶ Holland v. United States, 348 U.S. 121, 140 [ 75 S.Ct. 127, 137 , 99 L.Ed. 150 ]. We decline to adopt it today.” Id. 443 U.S. at 326 , 99 S.Ct. at 2792 . In U.S. v. Becker, 62 F.2d 1007, 1010 (2d Cir.1933), Judge Learned Hand, addressing the subject in the context of jury instruction, said: The judge failed to charge the jury as to circumstantial evidence, contenting himself with an entirely neutral statement of the opposed contentions of the parties, though he had been asked to say that such evidence was enough only when it foreclosed the hypothesis of innocence.

He had with ample elaboration told them that they must be satisfied beyond fair doubt of the defendant’s guilt, and that in our judgment was enough, though some courts have held otherwise. The requirement seems to us a refinement which only serves to confuse laymen into supposing that they should use circumstantial evidence otherwise than testimonial. All conclusions have implicit major premises drawn from common knowledge; the truth of testimony depends as much upon these, as do inferences from events. A jury tests a witness’s credibility by using their experience in the past as to similar utterances of persons in a like position.

That is precisely the same mental process as when they infer from an object what has been its past history, or from an event what must have preceded it. All that can be asked is that the importance of the result to the accused shall demand a corresponding certainty of his guilt; and this is commonly and adequately covered by telling them that the conclusion shall be free from fair doubt. To elaborate this into an inexorable ritual, or to articulate it for different situations, is more likely to impede, than to promote, their inquiry, (citations omitted) The principle explicated in Nichols and Metz received the approval of the Court of Appeals in Pressley v. State, 295 Md. 143 , 454 A.2d 347 (1983). Pressley had excepted to the trial court’s instructions as to circumstantial evidence, particularly to that part of the instruction which stated that the ⁴⁷⁷ law did not require the jury “to be satisfied beyond a reasonable doubt as to each link in a chain of circumstances necessary to establish defendant’s guilt.” He argued that since a chain is only as strong as its weakest link each link had to meet the test of proof beyond a reasonable doubt.

The Court repeated the language from Wharton’s Criminal Evidence and Underhill’s Criminal Evidence which we had quoted in both Nichols and Metz . The Court in Pressley rejected the argument that a chain of circumstantial evidence can only be as strong as its weakest link, quoting from Lampitt v. State, 34 Wyo. 247 , 242 P. 812 (1926), which stated: “Circumstantial evidence is not like a chain which falls when its weakest link is broken, but is like a cable. The strength of the cable, as stated in Ex parte Hayes, 6 Okla.Crim. [321,] 33 [-34], 118 Pac. [609,] 614 [(1911)]: ‘does not depend upon one strand, but is made up of a union and combination of the strength of all its strands. No one wire in the cable that supports the suspension bridge across Niagara Falls could stand much weight, but when those different strands are all combined together, they support a structure which is capable of sustaining the weight of the heaviest engines and trains.

We therefore think it erroneous to speak of circumstantial evidence as depending on links, for the truth is that in cases of circumstantial evidence each fact relied upon is simply considered as one of the strands and all of the facts relied upon should be treated as a cable.’ ” Id. 295 Md. at 150 , 454 A.2d 347 (citation omitted). Not directly expressed by the Court of Appeals in Pressley or by us in Nichols, Metz, Dorsey, or Young but clearly implied in Pressley and Metz is the rejection of the old adage that it is impermissible to “pile inference upon inference.” Although frequently repeated, this trite expression, which is founded upon an underlying distrust of inferences that rest upon too many intervening inferences, has been soundly ⁴⁷⁸ criticized. 1 Wigmore on Evidence, supra, § 41, flatly states that “circumstantial evidence may be proved by the same kind,” quoting Maxey, J., in Neely v. Provident Life & Acc. Ins. Co., 322 Pa. 417 , 185 A. 784 (1936): When jurors in their deliberations arrive by a process of reasoning at an acceptable inference of fact, they have a right to add such fact to any previous facts found by them and proceed by ratiocination from such fact or facts to additional inferences of fact and then proceed still further by like process until they arrive at the ultimate conclusion on the issue trying.

Thus, if the jury finds from direct evidence the existence of facts A, B and C and can reasonably infer the existence of fact D therefrom, there is no logical reason why it may not then add fact D to its pool of findings and from the combination of facts A, B, C and D infer fact E. Indeed, everyone does precisely that in everyday life, frequently reaching conclusion E without consciously recognizing that inference D was necessarily drawn in the process. Our review of the evidence in the case sub judice, in the light of the principles applicable to circumstantial evidence, persuades us that the jury could rationally find beyond a reasonable doubt all of the elements of felony murder, including the essential elements of the underlying felony. There was evidence to the effect that because Mrs. Shilling suffered from emphysema, the air conditioner was on and the doors and windows were kept closed. The front door was always locked; family, guests and visitors all entered through the kitchen door.

The nature of Mr. Shilling’s work was such that he constantly tracked dirt into the house and for that reason Mrs. Shilling always wore slippers and never went barefoot in the house. In a telephone conversation with her daughter minutes before she was killed, Mrs. Shilling indicated that she and her grandson were alone in the house, that she had put the child down for a nap and was about to take a nap herself. When Mr. Shilling returned home, the child was asleep on the sofa and ⁴⁷⁹ Mrs. Shilling’s body was on the floor. She was barefoot; her slippers were beside the couch.

There were blankets on the couch. Although Finke was Mrs. Shilling’s nephew and he had been a frequent guest in the past, he had not been to the Shilling house for about a year and a half. There was no explanation for his presence; there was no indication that he was expected, but Mr. Shilling indicated he would have been welcome to visit. From those facts it is reasonable to infer that the doors and windows were closed when Finke arrived at the house.

A reasonable inference could be drawn that the child was asleep and that Mrs. Shilling did not get up from the sofa and walk barefoot to the kitchen door to open it. True, the evidence does not exclude the theory that Mrs. Shilling either walked barefoot to the door and opened it or, while lying on the sofa, called an invitation to Finke to enter; but, as we have seen, circumstantial evidence need no longer exclude such hypotheses. Since it was not as likely that Mrs. Shilling would break a long-established habit to walk around barefoot and it was also not as likely that she would have remained on the living room sofa where the child was sleeping and called out an invitation to a guest at the kitchen door to enter, the most logical, probable and, therefore, rational inference to be drawn from the evidence was that Finke opened the door and entered the Shilling house without invitation. Because he had not visited his aunt for about a year and a half and was not expected on this occasion, in the absence of any legitimate basis for his presence, the jury could have rationally inferred that Finke’s entry was trespassory in nature, i.e., a breaking.

The intent element of the underlying felony of housebreaking, however, presents a somewhat different problem. The State argues on this appeal, as it had on the last appeal and at both trials, that the evidence could support a finding that Finke broke into the Shilling house with an intent to steal. It points to the testimony that Finke needed ⁴⁸⁰ money to pay for previously purchased drugs and to put his van in working condition as suggestive of a motive for theft. But there was no indication that appellant’s financial status on June 8,1979, was unusual for him.

In fact, he was due to receive his paycheck that afternoon. A general state of financial difficulties will not support an inference of motive or intent to steal. Indeed, the fact that nothing was taken from the Shilling home although cash and jewelry were in plain sight tends to belie an intent to steal. See, e.g., Felkner v. State, 218 Md. 300, 307 , 146 A.2d 424 (1958).

(The Court recognized that “[t]he most conclusive evidence that the breaking was with the intent to steal is the larceny itself....” Thus, while intent may be proven although nothing is taken, that fact tends to negate intent when there are no other facts or circumstances which tend to show intent.) Referring to evidence that the Shillings had planned to be in Las Vegas by June 8 but postponed the trip at the eleventh hour, the State theorized that Finke went to the Shilling home expecting it to be unoccupied and thus susceptible to theft; that he was surprised by Mrs. Shilling and killed her; and that he was forced to flee through the front door without stealing anything because Mr. Shilling arrived at the back door just after the murder. In the absence of any evidence tending to indicate that Finke had any knowledge of the Shillings’ vacation plans or any evidence pinpointing the time of the murder any closer than some time between 1:50 and 2:28 p.m., the State’s hypothesis rests upon pure speculation, not rational inference. We were unpersuaded on the prior appeal that the evidence supported a finding of intent to steal; we are equally unpersuaded on this appeal. We believe, however, that the jury could have found, beyond a reasonable doubt, the requisite intent element of the underlying felony of daytimé housebreaking, that is, an intent to murder.

When one breaks into someone else’s house and commits a crime therein, in the absence of other evidence of intent, the best evidence of what he ⁴⁸¹ intended to do is what he did. See, Felkner v. State, supra. That permissible inference, as we noted on the prior appeal, is sufficient under the test of Jackson v. Virginia, supra, and State v. Rusk, supra. 8 Appellant argues that in applying the felony-murder doctrine to a particular set of circumstances, one must keep in mind its deterrent purpose, Campbell v. State, 293 Md. 438, 450 , 444 A.2d 1034 (1982); that the purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for any killings they commit, People v. Washington, 62 Cal.2d 777 , 44 Cal.Rptr. 442, 445 , 402 P.2d 130, 133 (1965); that since a person entering a building with intent to assault his victim with a deadly weapon is not deterred by the felony-murder rule, that doctrine should only be applied to some felony independent of the homicide, People v. Wilson, 1 Cal.3d 431 , 82 Cal.Rptr. 494 , 462 P.2d 22 (1969); and, therefore, one cannot be convicted of felony murder if the underlying felony was housebreaking with intent to murder. That argument is interesting and might even be persuasive were it not for the fact that Md.Code Ann., art. 27, § 410, expressly provides that felony murder includes murder committed in the perpetration of daytime housebreaking as defined in art. 27, § 30(b) and, as we have seen, § 30(b) includes breaking a dwelling house “with intent to commit murder or felony therein.” II. and III.

MOTION TO SUPPRESS We will treat appellant’s second and third contentions together since they both relate to the court’s ruling on his motion to suppress oral statements. Appellant contends that the statement which the police elicited from him was not given voluntarily and thus was ⁴⁸² improperly received into evidence by the trial court. In dealing with appellant’s argument, we must “determine initially whether the activity complained of comports with the requirements of this State’s nonconstitutional law, and then, only if the court finds that it so complies, does it become necessary to reach the issue of whether any constitutional stricture prohibits the conduct in question.” Hillard v. State, 286 Md. 145 , 150 n. 1, 406 A.2d 415 (1979). Appellant points to three separate inducements made by the police; each of which, he alleges, constitutes a violation of state nonconstitutional confession law.

First, appellant cites Detective Mock’s representation that he would try to help people who tell him the truth. Appellant claims that this statement induced him to give a confession 9 to Mock. The State, on the other hand, argues that appellant is taking Mock’s statement out of context. Mock testified that he made the statement during a time when appellant was suffering from memory lapses.

The detective explained that the statement was a promise to check out any leads or witnesses appellant might bring to his attention. In Hillard v. State, supra, the Court of Appeals held that the petitioner’s inculpatory statement was given as a result of improper police inducement. Hillard gave a confession after being told by a detective “that he would ‘go to bat’ for petitioner before the court, and that ultimately petitioner would be ‘cut loose’ if the statement he made was corroborated by any of the others involved in the robbery and slaying.” Id. at 148, 406 A.2d 415 . The Court reviewed its prior decisions in the area and then rendered the following declaration: ⁴⁸³ From this line of cases, it clearly emerges that under Maryland criminal law, independent of any federal constitutional requirement, if an accused is told, or it is implied, that making an inculpatory statement will be to his advantage, in that he will be given help or some special consideration, and he makes remarks in reliance on that inducement, his declaration will be considered to have been involuntarily made and therefore inadmissible.

Id. at 153 , 406 A.2d 415 . Appellant argues that Hillard renders his statement inadmissible; that Detective Mock’s representation in effect told appellant that making an inculpatory statement would be to his advantage. This court has observed that the intent of Hillard was to “deter the police from making any statements to a defendant which would plant the seed of the possibility of an advantage as a result of the rendition of a confession.” Bellamy v. State, 50 Md.App. 65, 76 , 435 A.2d 821 (1981) (emphasis in original). It is appellant’s conclusion that Hillard and Bellamy necessitate a ruling in his favor.

We disagree. In Clark v. State, 48 Md.App. 637 , 429 A.2d 287 (1981), this court was faced with a similar factual situation. There, the police told Clark that if he knew any other facts concerning the case they would investigate them for him. Clark argued that such a statement amounted to a promise of a benefit to him and thus improperly induced him to give inculpatory statements.

We rejected his