Mills v. State

Smith, J., delivered the opinion of the Court. Eldridge, J., concurs in the result. Appellant, Clement Franklin Mills (Mills), was convicted by a Montgomery County jury of rape, armed robbery, and kidnapping (two counts). The Court of Special Appeals affirmed the convictions in Mills v. State, 28 Md. App. 300 , ²⁶⁴ 345 A. 2d 127 (1975).

We granted the writ of certiorari in order that we might consider the contentions of Mills (1) that “the trial court err[ed] in denying [his] pre-trial motion to suppress evidence seized from [his] home pursuant to a search and seizure warrant,” and (2) that it also “err[ed] in permitting the introduction of testimony concerning a blood sample which was illegally obtained from [him].” We, also, shall affirm. The basic facts were set forth for the Court of Special Appeals in 28 Md. App. at 301-03 . We shall relate only such facts here as are requisite for an understanding of the issues presented. We shall consider the contentions of Mills in inverse order. i The blood sample The State called an expert witness, an employee of the Federal Bureau of Investigation, to testify concerning results of tests he performed on pants and underpants worn by the victim on the night of the offense.

He testified on direct examination that his analysis revealed the presence on both garments of semen containing spermatozoa. Mills’ attorney asked him on cross-examination whether he was “able to tell anything else about the semen, other than it contained spermatozoa.” The witness replied in the affirmative. He was then asked “[w]hat else [he] could ... tell.” The reply included the information that the expert “determined in the semen stain the presence of A blood group factor.” On redirect examination the State elicited from the witness that he had tested a sample of Mills’ blood and determined that it was group A blood. Mills claims that the trial court erred in permitting this testimony.

The short answer to this contention is that no objection was interposed in the trial court to the question which brought forth the response that the blood obtained from Mills “was determined to be group A blood.” Maryland Rule 522 d 2 requires that “objection to the admissibility of evidence shall be made at the time when such evidence is offered, or as soon thereafter as the objection to its admissibility shall ²⁶⁵ have become apparent, otherwise the objection shall be treated as waived.” There having been no objection, the point is not preserved for appellate review. ii The search and seizure This controversy concerns the admission into evidence of a hunting knife and sheath identified by the victims as similar to the one used in connection with the crime. The knife and sheath were recovered from the home of Mills when a search was made pursuant to a search warrant. The objections of Mills are twofold, that his home address was educed from him in violation of his rights under Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 (1966), and that probable cause for issuance of the search warrant was not shown. a Miranda The application for the search warrant and the affidavit submitted in support of it specified the address of the house which it was proposed to search, described the exterior of the house in some detail, and also described a second floor bedroom. Neither the application nor the affidavit gave the source of these descriptions other than the statement in the affidavit that the information in the affidavit was “on the basis of information gathered by [the applicant] and on the basis of information received by [him] as a member of the Montgomery County Department of Police.” After Mills was taken into custody, he was given the warnings required by Miranda .

He asked for an attorney. Efforts to obtain an attorney at that time were fruitless. The police did not attempt to further question Mills about the offenses. They did, however, ask him for his address because of “[t]he necessary forms that need[ed] to be completed ....” Inquiry also was, made as to the specific part of the house in which he lived.

It was explained at the suppression hearing that this inquiry was made because their ²⁶⁶ “investigation at the time of the arrest revealed there was certain pertinent physical evidence that might be present in his home” and the police desired this specific information in order to apply for a search warrant for the knife. Questioning at the suppression hearing of the officer who made the affidavit developed that the sources of his information were Mills; Mills’ uncle, Thomas Martin; and a lady who accompanied Martin to the police station. The officer said that he did not ask Martin or the lady what color walls there were in Mills' bedroom because he had “obtained that information from Mills himself.” He did, however, obtain from them information “[t]hat [Mills] in fact did reside at number sixteen Park Avenue, at Gaithersburg,” the same information that he had obtained from Mills himself. In Miranda the Supreme Court held that if an accused “indicates in any manner [during ‘custodial interrogation’] and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” Thus, the issue raised by.

Mills’ argument on this point is the interpretation to be given “no questioning.” All three cases before the Court in Miranda , unlike the case át bar, involved self-incriminating statements by • those being interrogated. Evidence of the intended thrust of the opinion in Miranda is gleaned from the analysis by Chief Justice Warren of the effect of police methods of interrogation: “In essence, it is this: To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe.

Patience and persistence, at times relentless questioning, are employed. To obtain . a confession, the interrogator must ‘patiently maneuver himself or his quarry into a position from which the desired objective may be attained.’ When normal procedures fail to produce the needed result, the police may resort to deceptive ²⁶⁷ stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights. “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.” Id. 384 U. S. 455 .

That the primary concern of the Court was protection of the, individual’s Fifth Amendment right against self-incrimination, specifically to prevent submission of an individual’s will to coercive pressures exercised by the police, is shown by that part of the opinion in which the Court said: “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. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. The current practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles — that the individual may not be compelled to incriminate himself.

Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained frofn the defendant can truly be the product of his free choice. “From the foregoing, we can readily perceive an intimate connection between the privilege against self-incrimination and police custodial questioning. It is fitting to turn to history and precedent underlying the Self-Incrimination Clause to determine its applicability in this situation.” Id. 384 U. S. 457 -58. ²⁶⁸ A determination of whether Mills’ rights under Miranda were violated depends on whether the questions asked of him, after his request for an attorney, were of a type which would create a risk that his free will to speak or to remain silent in the face of possible self-incrimination would be overcome. The assumption behind this approach, that the Miranda prohibition against “all questions” after a request for an attorney, need not be interpreted literally, is supported by Michigan v. Mosley, 423 U. S. 96 , 96 S. Ct. 321 , 46 L.Ed.2d 313 (1975). The defendant there was arrested in the early afternoon in connection with certain robberies.

He was advised of his Miranda rights. When the officer began questioning him about one of the robberies the officer was advised that the defendant did not wish to answer any questions about the robberies. The questioning ceased. The arrest papers were completed and Mosley was taken to a cell.

Some time later a second officer removed Mosley from the cell in order that he might question him about a shooting in no manner involved with the robbery investigations. Mosley had not been arrested on that charge nor had he been interrogated by the original officer relative to that incident. He was again advised of his Miranda rights. He did not indicate a desire to consult with an attorney nor did he indicate that he did not wish to talk about this particular homicide.

During this interrogation he confessed to his involvement in the homicide. The Court referred to the passage in Miranda which states that “the interrogation must cease” when the person in custody indicates that “he wishes to remain silent” and acknowledged its ambiguity. Mr. Justice Stewart said for the Court: “It does not state under what circumstances, if any, a resumption of questioning is permissible. The passage could be literally read to mean that a person who has invoked his ‘right to silence’ can . never again be subjected to custodial interrogation by any police officer at any time or place on any subject.

Another possible construction of the passage would characterize ‘any statement taken after the person invokes his privilege’ as ‘the ²⁶⁹ product of compulsion’ and would therefore mandate its exclusion from evidence, even if it were volunteered by the person in custody without any further interrogation whatever. Or the passage could be interpreted to require only the immediate cessation of questioning, and to permit a resumption of interrogation after a momentary respite.” Id. at 101-02. The Court concluded that the Miranda prohibition of further questioning was not absolute, stating: “It is evident that any of these possible literal interpretations would lead to absurd and unintended results. To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned.

At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.” Id. at 102-03. The Court determined that the circumstances of that icase were such that a resumption of questioning, after assertion of the right to remain silent, was permissible, saying: i ( “This is not a case, therefore, where the police ! failed to honor a decision of a person in custody to ¡ ²⁷⁰ cut off questioning, either by refusing to discontinue the interrogation upon request or by . persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.” Id. at 105-06.

Mosley establishes that the Supreme Court does not interpret literally the Miranda language that after a suspect requests an attorney “there can be no questioning” and that the Court sees the rule as a qualified one which does not apply where the circumstances indicate that the individual’s will with regard to self-incrimination is not subject to coercion. The holding in Mosley is consistent with federal and state decisions which have permitted questions, notwithstanding Miranda , when those questions were not intended to elicit an inculpatory response and thus did not subject the individual to the coercive influence of custodial interrogation which Miranda was intended to prevent. For instance, in Farley v. United States, 381 F. 2d 357 (5th Cir.), cert. denied, 389 U. S. 942 (1967), the defendant was convicted of attempting to break into a post office with intent to commit a larceny or other depredation. Early on the morning of the alleged incident two deputy sheriffs, acting on a tip from a postal inspector, were checking on post offices in that particular area.

As they approached one building they observed two men standing near a wall of the building. They called for the men to halt, but the men fled. The defendant was found squatting in some nearby bushes. At the trial, to negative any possible explanation for this defendant’s presence at the scene, the prosecution sought to prove that he lived a significant distance away.

The evidence offered to prove this was a statement of the defendant’s address obtained from ²⁷¹ him after he had declined to discuss the incident. The court declined to apply the Miranda exclusion, reasoning: “The place where Farley lived was, of course, not a matter within Farley’s exclusive knowledge, and he no doubt recognized that a little investigation by the officers would locate that place. It was a circumstance having at most a remote bearing upon his guilt or innocence. There was no evidence of any oppressive or overbearing circumstance.

Indeed, the officer’s inquiry took the form of a mere request. True, Miranda teaches that, ‘If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.’ 384 U.S. at 473, 474 , 86 S.Ct. at 1627 . Under the circumstances of this case, that direction was faithfully executed with the possible exception of the further inquiry, ‘Will you tell me where you live?’ Under all of the circumstances of this case, it does not seem reasonable to apply Miranda so strictly as to exclude the response to that inquiry.” Id. at 359. Other such holdings include United States ex rel.

Hines v. LaVallee, 521 F. 2d 1109 (2d Cir. 1975), cert. denied, 423 U. S. 1090 , 96 S. Ct. 884 (1976); United States v. Castellana, 500 F. 2d 325 (5th Cir. 1974); United States v. Menichino, 497 F. 2d 935 (5th Cir. 1974); United States v. LaMonica, 472 F. 2d 580 (9th Cir. 1972); United States v. McDaniel, 463 F. 2d 129 (5th Cir. 1972); State v. Landrum, 112 Ariz. 555 , 544 P. 2d 664 (1976) (“To hold that a law enforcement officer could not question an individual as to his name after he had been lawfully detained, but prior to receiving his Miranda warnings, would be the height of absurdity.”); People v. Hernandez, 263 Cal. App. 2d 242 , 69 Cal. Rptr. 448, 454-55 (Ct. App., 5th D., 1968) (It was necessary on the charge to prove that the accused was over 21 years of age. A birth certificate was produced.

It was necessary to prove the preliminary fact that the person referred to in the birth certificate was the accused. A booking officer was permitted to testify that when booked the accused had given his birth date as stated in that ²⁷² certificate. The court said, “[W]e hold that the Miranda requirements did not apply to this situation inasmuch as nothing was asked of the defendant concerning his alleged crime; there was no process of interrogation ‘designed to illicit [sic] incriminating statements.’ (People v. Walters, 252 A.C.A. 352, 60 Cal. Rptr. 374 .) The simple statement of one’s age, which is apposite at a different time and place than the crime of which a defendant is accused and which comes in a different context from the arrest, is not subject to the Miranda rationale in circumstances such as existed here.”); State v. Rassmussen, 92 Idaho 731, 736 , 449 P. 2d 837 (1969) (On prosecution for procurement evidence was admitted that in a subsequent, unrelated booking defendant gave his occupation as “pimp.” The court relied, among other cases, on Clarke v. State, 3 Md. App. 447, 240 A. 2d 291 (1968), and People v. Hernandez, supra.

The court stated, “It seems clear that the questioning conducted during the booking process in the present case was not the type of interrogation proscribed by Miranda v. Arizona, supra....”); and State v. Jordan, 506 S.W.2d 74, 82-83 (Mo.