Mulligan v. State

Gilbert, J., delivered the opinion of the Court. Robert T. Mulligan, appellant, makes his third appearance in this Court as a result of his being convicted thrice by a jury in the Criminal Court of Baltimore for the second degree murder of his child, Mary Lynn Mulligan, age eight months. We reversed the appellant’s first- conviction, Mulligan v. State, 6 Md. App. 600 , 252 A. 2d 476 (1969), because of a violation of appellant’s rights guaranteed to him by Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 (1966). The second case of the appellant to reach this Court, Mulligan v. State, 10 Md. App. 429 , 271 A. 2d 385 ⁵⁹⁰ (1970), was reversed “because a statement obtained from Mulligan by custodial interrogation reached the jury without a preliminary determination by the trial court that it was voluntary.” As a result of the second Mulligan reversal, the appellant was retried.

His current conviction has led to a legalistic broadside being directed toward the trial court’s rulings both at a suppression hearing, pursuant to Rule 725, and during the course of the trial. No useful purpose would be gained by another recitation of the facts surrounding the death of the infant, Mary Lynn, 1 although we shall state such of them as are necessary to our discussion. The appellant moved to suppress evidence of an oral confession allegedly made by him to Lt. Charles W. Goodrich of the Baltimore City Police Department.

At the outset of the hearing on the motion, the State moved for “appropriate relief.” The Assistant State’s Attorney said: “The State is requesting in its motion that Mr. Leach [defense counsel] refrain from asking any questions of this witness either in this . hearing or on the case . in chief regarding any disciplinary proceedings that may have taken place through the Baltimore City Police Department with regard to Mr. Goodrich.” The court reserved its ruling on the motion until the hearing, conducted out of the presence of the jury, was concluded. Appellant’s counsel, through a maze of questions, endeavored to attack the credibility of Goodrich. The lieutenant was painfully interrogated relative to the circumstances surrounding the arrest and booking of the appellant. Goodrich said that he, the appellant, and other officers arrived approximately at 10:55 a.m. at the Southwestern Police Station.

In response to the question, “What did you charge Mr. Mulligan with?” Goodrich ⁵⁹¹ responded, “Mr. Mulligan was booked for investigation of homicide.” He further said, “I instructed the desk sergeant to book him for investigation of homicide.” Mulligan was then placed in the cell and the lieutenant explained the reason for doing so as: “At that particular time, I didn’t have sufficient information in my opinion to really conduct an interrogation of Mr. Mulligan, and I wanted to accumulate more information, so that when I did, in fact, interrogate Mr. Mulligan, I would be able to do a better job than I could at that time. I had very little information to really conduct a good interrogation, and I thought it was incumbent upon me to obtain more information, so that my interrogation would bear a little better fruit than it would at that time.” The lieutenant insisted that the charge was “investigation of homicide.” The typewritten arrest register offered into evidence notes the charge against Mulligan to be that of: “unlawfully, wilfully and maliciously did strike and beat one Mary L. Mulligan, a female infant age eight months and thereby causing the death of said, Mary L. Mulligan, at St. Agnes Hospital at 11:12 a.m. on May 30, 1966 in Baltimore City, State of Maryland.” The copy of the arrest register dated June 3, 1966, with the time of arrest stated as 10:30 a.m., is unsigned, although there is a place for signature. Superimposed upon the report, however, are notes admittedly written in Goodrich’s handwriting. Further inquiry was made concerning an “offense report” and a “supplementary offense report” consisting of three leaves of paper with typing on the obverse side of all three leaves and on the reverse side of one.

The “offense report” and “supplementary offense report” appear to have been reproduced. They were signed by the officer in charge of the Southwestern District at the time of the offense, but the record discloses the signatures to be perfunctory. The name of the investigating officer is typed “Robert Schleicher.” There also appears a typist’s initials of “aan.” The reports do ⁵⁹² not bear the signature of Goodrich or any other officers who actually conducted the investigation into the death of Mary Lynn Mulligan, unless the typed name “Robert Schleicher” is deemed to be a “signature.” The vigorous cross-examination of Lt. Goodrich was based on the knowledge possessed by appellant’s counsel that Goodrich had been found guilty by a police departmental trial board of seven “specifications of violation of Rule 1, Conduct, § 17, Police Department of Baltimore City Rules and Regulations and Manual of Procedure (1959).” 2 Each of the specifications alleged that the lieutenant had “filed or caused to be filed a false report in substitution of the original report.” Two other charges, adopting in toto the specifications of the first charge, were also lodged against Lt.

Goodrich. One charged a violation of Rule 1, § 19 3 of the Rules and Regulations and Manual of Procedure, and the other a violation of Rule 6, § 5 thereof. 4 Goodrich was ⁵⁹³ likewise found guilty by the trial board of those two charges. The action of the board was confirmed by Commissioner Pomerleau on February 15, 1972. The offenses were all alleged to have occurred during the period March through June, 1971.

The appellant offered “Personnel Order #72-91,” which was the actual findings of the trial board, as well as the action taken by Commissioner Pomerleau, for identification purposes, but the trial judge refused to allow any questions of the witness concerning either the charges or the findings by the police department tribunal. At the conclusion of the hearing on the motion to suppress, the trial judge, as we have noted, ruled the confession admissible. The State’s motion for appropriate relief, i.e., to preclude Goodrich’s being questioned before the jury, as to the findings of the police trial board, was granted. As a general rule, the degree to which cross-examination is permitted is to a large extent vested in the discretion of the trial court.

Williams v. State, 15 Md. App. 320 , 290 A. 2d 542 (1972); Jenkins v. State, 14 Md. App. 1 , 285 A. 2d 667 (1971); Long v. State, 7 Md. App. 256 , 254 A. 2d 707 (1969); Duncan v. State, 5 Md. App. 440 , 248 A. 2d 176 (1968). Under the circumstances of the instant case, for the reasons hereinafter stated, we think the judge abused that discretion. 3A Wigmore, Evidence, § 983 (Chadbourn rev. 1970) quotes from the case of Territory v. Chavez, 8 N. M. 528, 531, 45 P. 1107 -1108 (1896). There the court, in speaking of the cross-examination of witnesses, said: “ ... The truth is the thing to be sought.

Assaults upon a witness by cross-examination into collateral matters cannot be allowed to gratify the caprice or the displeasure of those against whom he testifies; and intrusions into private affairs, which are calculated merely to wound the feelings, humiliate, or embarrass the witness, will not be permitted.... ⁵⁹⁴ But a clear distinction is to be taken between those matters called for on cross-examination which merely excite prejudice against the witness, or tend to humiliate him or wound his feelings, and those matters, on the other hand; which are calculated, in an important and material respect, to influence the credit to be given to his testimony. As to the latter class, the witness cannot be shielded from disclosing his own character on cross-examination, and for the purpose he may be interrogated upon specific acts and transactions of his past life; and if they are not too remote in time, and clearly relate to the credit of the witness; in an important and material respect, it would be error to exclude them. How far justice may require, such examinations to go, how much time should be spent upon them, what should be excluded for remoteness of time, and what for being trivial or unimportant, must depend in some' measure upon the circumstance of each case; and these are questions addressed primarily to the discretion of the trial Court; but the discretion should be liberally exercised.” The issue at the suppression hearing boiled down to one of choosing between the credibility of Lt. Goodrich on the one hand, and that of the appellant, bolstered to some extent by his wife, on the other hand.

It was, in essence, a battle of affidavits. We think the testimony concerning Goodrich’s having been found guilty of falsifying official reports of the Baltimore City Police Department was relevant to the issue of his credibility. It may be that the trial judge, had he considered the evidence demonstrating Goodrich’s falsification of official police reports, would have, nevertheless, believed the lieutenant’s testimony and not that of the appellant, but we shall not speculate thereon. Nor can we say that if the jury had heard testimony of the lieutenant’s falsification of police reports, it would have believed him.

The jury should have been allowed to weigh the lieutenant’s testimony on the scale of Proverbs 14:5, “A ⁵⁹⁵ faithful witness will not lie: but a deceitful witness uttereth a lie.” Professor Charles T. McCormick, in his Handbook of the Law of Evidence, 1954 Ed., at § 42, after discussing “[t]he English common law tradition of ‘cross-examination to credit,’ ” states: “In this country, the danger of victimizing witnesses and of undue prejudice to the parties, has led most of our courts to recognize that this kind [the English common law tradition] of cross-examination, though permitted, is subject to a discretionary control by the trial judge. Some of the factors, in addition to those of undue humiliation and unfair prejudice, ... which may, it seems, sway discretion, are (1) whether the testimony of the witness under attack is crucial or unimportant, (2) whether the misconduct inquired into is relevant to truthfulness, such as false swearing, fraud and swindling, or bears only on ‘general bad character’ such as acts of violence or unchastity, (3) the nearness or remoteness of the misconduct to the time of trial, and (4) whether the matter inquired into is such as to lead to time-consuming and distracting explanations on cross-examination or re-examination. (Footnotes omitted). The final curb on character-impeachment by proof of misconduct not the subject of convictions is the important and accepted rule that it is limited to cross-examination.

Thus, if the witness denies the alleged misconduct, the examiner must ‘take his answer,’ not in the sense that he may not further cross-examine to extort an admission, but in the sense that he may not call other witnesses to prove the discrediting acts.” (Footnotes omitted). This Court noted in DeLilly v. State, 11 Md. App. 676 , 276 A. 2d 417 (1971), at 681: ⁵⁹⁶ “We are, of course, mindful of the general rule so frequently cited that the allowance or disallowance of questions on cross-examination is normally left to the sound discretion of the trial judge. But where the limitations imposed by the court upon cross-examination are such as plainly inhibit the ability of the accused to obtain a fair trial, the general rule is manifestly inapplicable. Shupe v. State, 238 Md. 307 .

The real object of cross-examination is ‘to elicit all the facts of any observation or transaction which has not been fully explained.’ Williams v. Graff, 194 Md. 516 , and cases cited at p. 523. That a witness may be cross-examined on such matters and facts as are likely to affect his credibility, test his memory or knowledge or the like, is a fundamental concept in our system of jurisprudence. Kantor v. Ash, 215 Md. 285 ; Bryant v. State, 4 Md. App. 572 . And cross-examination to impeach, diminish, or impair the credit of a witness is not confined to matters brought out on direct examination; it may include collateral matters not embraced in the direct examination to test credibility and veracity, it being proper to allow any question which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or which tends to test his accuracy, memory, veracity, character, or credibility. 3 Wharton’s Criminal Evidence, Sections 870, 871; 58 Am.

Jur. Witnesses Section 625. Of course, the right to cross-examine effectively necessarily includes the right to place the testimony of a witness in its proper setting to fairly enable the jury to judge its credibility. Smith v. Illinois, 390 U. S. 129 ; Alford v. United States, 282 U. S. 687 ; Plank v. Summers, 205 Md. 598 .” (Emphasis supplied). 2 Wharton’s Criminal Evidence (13th ed. 1972), at § 440, states: “A witness may be cross-examined as to his past ⁵⁹⁷