Mulligan v. State

Orth, J., delivered the opinion of the Court. The controlling point on this appeal is the use by the prosecution of a statement obtained by the police during a custodial interrogation of the appellant. The statement was obtained on 3 June 1966, prior to the decision in Miranda v. State of Arizona, 384 U. S. 436 , and used by the prosecution at the trial of the appellant on 15 May 1968, subsequent to the decision in Miranda . We are compelled by the Miranda holding to reverse the conviction of the appellant of murder in the second degree at a court trial in the Criminal Court of Baltimore and set aside his sentence of 12 years.

Miranda dealt specifically with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation, which the Court characterized as raising questions which went to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime, p. 439. The Court started with the premises, as it did in Escobedo v. State of Illinois, 378 U. S. 478 , decided two years before, that its holding was not an innovation in our jurisprudence, but was an application of principles long recognized and applied in other settings, p. 442. 1 It endeavored to explore some facets of the problems exposed by Escobedo and to give concrete constitutional guidelines for law enforcement agencies and courts to follow. It did so with specificity but it first briefly stated its holding to be: “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.” p. 444. It stated, however, that confessions remain a proper element in law enforcement. “Any ⁶⁰³ statement given freely and voluntarily without any compelling influences, is, of course, admissible in evidence.” p. 478.

But it made clear that a statement obtained in the absence of the procedural guidelines enunciated was not “without any compelling influences.” The applicability of the Miranda holding to other cases is determinative, not by the time of interrogation, but by the time of trial; Miranda applies to those cases in which the trial began after the date of the Miranda decision, 13 June 1966. Johnson v. State of New Jersey, 384 U. S. 719, 721 . Miranda spelled out in detail the Court’s meaning of “custodial interrogation”, the warnings that must be given prior to any questioning, what may constitute a waiver by the defendant of rights required to be made known to him, and the procedure to be followed if the rights are not waived. While the procedural guidelines and the exclusionary rules it enunciated did not result in a discard of the old voluntariness test entirely, we think it clear from the opinion that if the procedural guidelines are not followed, a statement obtained is per se to be excluded, permitting the State no opportunity to show that the admission of a statement so obtained was harmless error, as the State may do with respect to a judicial identification made after an illegal confrontation, which is part of the exclusionary rule enunciated in United States v. Wade, 388 U. S. 218, 242 .

See George Sanders Smith v. State, 6 Md. App. 59 ; Smithson v. State, 5 Md. App. 378, 381-382 . We have discussed and interpreted Miranda and applied its holding in a number of cases. But none has reached us with a factual situation comparable to that which is now before us. The indictment charging the appellant with murder resulted from the death on 30 May 1966 of Mary L. Mulligan, 8 months of age.

From the time she was 5 days old she had lived with the appellant, Robert T. Mulligan and his wife, Rachel Mulligan, who had instituted proceedings to adopt her. They had been married in 1958, a daughter had been born of the marriage four and a half years later and a second daughter was born on 16 September 1966. Robert Mulligan had attended Washington Masonry College, Antietam Park, Maryland for three years, majoring in accounting and was teaching accounting at the Greater Baltimore Academy. Rachel Mulligan was a registered nurse, ⁶⁰⁴ employed at St. Agnes Hospital.

The Mulligans had been investigated by the Probation Department of the Supreme Bench of Baltimore City and the adoption was about to be “consummated” at the time of the child’s death. Rachel Mulligan, on 29 and 30 May was working from 11:45 P.M. to 7:45 A.M. at St. Agnes Hospital. When she left home about 11:30 P.M. the child “was okay when she was put to bed and was sleeping.” At the time her husband and their three year old daughter, Theda, were the only others in the house. Both had also gone to bed.

She arrived home about 8:00 A.M. 30 May. Her husband and both children were there. Mary “appeared all right to me * * * I looked at her but there was nothing unusual.” Her husband said “something to the effect that she had thrown up during the night. * * * that didn’t seem to be anything unusual, both girls have done this at some time or other * * * he did say she was a little fussy during the night.” When she arrived home Mary was in her chair in the dining room. Her husband told her that when she was “fussy” during the night and “he tried to comfort her, he rocked her (and) tried to give her another bottle.” She fed the child and put her to bed.

She appeared to be normal and took her usual morning nap. The mother took a nap and about 10:30 A.M. “went up and checked on her.” She noticed that the child’s “eyes were staring off into space, and she appeared funny. I didn’t know what to think.” She changed the child’s diaper and called her husband, who was at school (“he taught in our denomination school and they had school that day”). “I figured if I had to take her to the hospital that would be the fastest way to get her there because the school is only several minutes from where we lived.” Her husband came right home. “He picked her up, ran to the car with her, and then he couldn’t find his keys, the car keys, so a neighbor was out in the back yard and he said he would take us. He is a fireman and he stopped off at the fire house * * * The fireman took her * * * to the hospital in the ambulance * * * (at the fire house and) in the ambulance they gave her mouth to mouth resuscitation and artificial respiration.” At the hospital they were told that the child had died.

Dr. Frank Detorie, completing his third year in surgery at St. Agnes Hospital, saw the child at the hospital on 30 May ⁶⁰⁵ 1966. She was brought in by ambulance drivers and they were attempting mouth to mouth resuscitation. “It was apparent to me that the child had been dead for quite some time * * The closest he could approximate the time of death “purely based on the fact the child’s body was still warm, would be within twenty to twenty-four hours.” He described the baby as he examined it that day: “In looking the child over I noticed several marks of contusion on the body. A prominent one was in the face, at the chin. There were several bruises on the legs, and in noticing these, I turned the child’s body over and noticed very large bruises in the lower back, in the middle portion of the lower back. * * * The bruise on the face was rather large and the bruise on the lower back was rather prominent it seemed; a large amount of contusion evidence in the back, the ones on the legs were rather smaller bruises.” It w’as his opinion that “the bruises on the lower extremities could have been attributed to falls and banging against one another.

However the bruise on the chin and the large bruise on the back would be difficult to explain in this fashion.” He asked the parents about the current health of the child and there was no indication from them that she had been ill. “I questioned them also about the bruises on the body, and again there was no indication to me that the parents were aware of any accident or of any recent trauma that the child was submitted to. I became suspicious because you cannot explain away bruises such as those without some knowledge of how they occurred. So in an apparently healthy child arriving at the hospital dead, with several large bruises on its body, I became suspicious of the cause of death.” He notified the Medical Examiner. He became aware later of a previous admittance of the child to the hospital.

The diagnosis at that time was multi-fractures of the meta-carpal. He stated that the bruising of the child’s back could not have been caused by the efforts at artificial respiration. He was referred to the hospital record on the child dated 28 February 1966. He read into the record: “Bone survey shows that this child apparently had X-rays involving every part of its ⁶⁰⁶ body.

Basically no fractures of the skull. Fracture of the left hand, fracture of the meta-carpal of the left hand and some calcification around the pelvis. Diagnosis: A battered child syndrome is being entered of its beaten body.” It was signed by Dr. Joyce Boyd. Dr. Joyce Boyd, a pediatric resident at St. Agnes Hospital, had seen Mary Mulligan in the emergency room in February of 1966.

Her findings and diagnosis on 28 February were that the X-rays showed a fracture of the skull, and meta-carpal of the left hand (the left ulna and left carpal) and calcification around the pelvis and “the diagnosis of a battered baby syndrome was entertained.” When she first examined the child she was holding her leg in a peculiar position, not moving the left hip or knee nor the left ankle or toes. She remained in the hospital 16 days. On cross-examination she explained that as to the skull “it was a linear depressed fracture * * * you cannot tell by looking at the X-ray whether it is a serious fracture or not * * * it was just a small fracture. There was no “definite fracture of the left leg” but “there was a possibility of a fracture.” The baby was treated for an upper respiratory infection but the final diagnosis was “No.l: Multiple fractures metacarpal, ulna and skull; No.2: Subperiosteal hemotoma; No.3: Acute upper respiratory infection.” Dr. Werner Spitz, Assistant Medical Examiner of the State of Maryland, performed the autopsy on the child. “The child had superficial abrasions; a number of insignificant abrasions on the back and on the scalp.

The X-ray showed one or several old fractures, healed fractures on the left leg—left thigh. The cause of death was inflammation of the abdominal cavity, of the organs of the abdominal cavity. An abundant piece of the abdomen due to a laceration of the small bowel following blunt trauma of the abdomen.” He was asked to give his opinion of the cause of death. He said: “Well, the sequence here, there was no doubt in my mind as to the sequence.

The sequence was that a blunt trauma took place in the child’s abdomen. This caused a laceration of the bowel; with a compellant flow of intestinal juices and feces into abdominal cav ⁶⁰⁷ ity and, of course, subsequent inflammation which in turn caused death. Apart from this, the evidence of one of my staff, from the evidence of one of my staff I tend to believe there was more than one fracture of the thighbone, which to me made the entire picture—to me it appeared as falling into the general category of a battered child.” He said that the findings at the time of autopsy “are consistent with a battered child syndrome.” The signs of healed fractures influenced this opinion. “The reason is that bones don’t break up on their own initiative unless they are diseased, and with the same certainty I could see that some injury has taken place to the thigh of this child with the same certainty I could see that a blow or impact has taken place on its abdomen, and by the same token it could have taken place to this thigh or an arm or any other location.” There were superficial bruises of both thighs and of the legs on the front of the body. The back of the child contained a bruise and abrasion over the middle of the back, within the mid-lines. “I think that this point is important.

The reason I attributed importance to this was * * * these two injuries in conjunction with an impact to the abdomen * * * At the time I saw the bruises and abrasions on the back and then completed the autopsy and found the hole in the guts, I formed an opinion as to the mechanism of the injury * * * I think the child when hit, it was one or two maybe three days, was that it was tied in with the child’s back against a solid, hard surface. It would not be unacceptable that the child was at that time, for example, sitting in a high chair. Incidentally I would like to mention that the bruises of the leg were such as would be made with a blunt force of some character.” As to the back bruise, “I think the force would apply to the front against a hard surface, a child sitting or lying with back against a hard surface.” On cross-examination he was asked if it was correct that he concluded that the baby had been dead some three or four days prior to the autopsy on 31 May. He stated that he had not so testified and was asked if he had an opinion when the baby died.

He stated that it would be difficult to re-establish at this point. The date of death as 30 ⁶⁰⁸ May “was perfectly acceptable at the time of the autopsy, and it would come to my mind that something is fishy if I had been told that death had occurred one or two, three or four days before. The baby, to my knowledge, had died within the past twelve hours or so (from the time of the autopsy).” The date of 30 May as the time of death “seemed perfectly all right and not necessarily to be questioned. There was no need to question it.” Cross-examined at length as to the direct cause of death, he was finally asked whether the laceration of the duodenum, through which intestinal juices exuded, causing inflammation, could have been caused by pressure upon the body just as readily as a blow. “In other words, if there was some sort of a pathological defect in this area, could pressure upon the body cause this rupture just as readily as a blow.” The witness answered : “I examined this child, I examined it thoroughly, and I examined it with close to fifteen years of experience, and I found no disease in the entire child except the inflammation we saw here, which resulted on leakage from this hole or laceration.

With respect to your question, the answer is no. Gentle pressure or strong pressure or any pressure which is not a blunt impact, would not cause this.” He explained the reason for his answer fully. His final conclusion was that “I cannot conceive of anything in this case beside the blow.” It was also his opinion that the blow' would not have caused instantaneous death “because otherwise there wouldn’t have been all this infection, and in my estimation it would have taken one or three days—or two or three days for the infection to develop, it takes time for an infection to develop, and it takes time for it to accumulate,” but it possibly could have been a lesser time. While the infection was developing the baby would have suffered pain.

It was the opinion of the Medical Examiner that she died “of purulent peritonitis due to laceration of duodenum following blunt force injury to the abdomen. The anatomical changes as determined upon external examinaconsistent with a battered child syndrome.” ⁶⁰⁹ We think this evidence was sufficient to prove the corpus delicti. The trial court could have properly found that the death of the child was a homicide and that the homicide was murder. See Dyson v. State, 6 Md. App. 453 .

We have set out the above evidence in some detail as necessary background in considering the controlling point of the case on appeal. The corpus delicti having been established, the issue was the criminal agency of the appellant. The criminal agency of the appellant depended in large part upon admissions he made that he had beat the child. The appellant was arrested on 3 June 1966.

Lt. Charles Goodrich testified that “up to the point of the statement by the Medical Officer, this was a case of a sick child who died at the hospital * * * The reason we made the arrest was based on the information of the medical examination by Dr. Spitz.” The Lieutenant went to the school where the appellant was employed, explained that they were investigating the death of Mary L. Mulligan and he agreed to go to the Southwestern Police Station. If he had refused to go “he would have been arrested and taken in.” At the police station he was “booked for investigation” and placed in a cell block. It appears that during the interval between the arrival at the police station and the placing of the appellant in the cell block he was asked whether he had anything to add to the report “he gave the hospital as to the baby.” It cannot be clearly ascertained from the record whether the appellant was advised of his “rights” before he was asked this question.

The Lieutenant testified that when he and the appellant went to the Southwestern Station “we talked and asked Mr. Mulligan if he had any information to add in the police report. He said he did not. Upon arriving at the Southwestern District, he was then booked for investigation and we advised him at this time of counsel, he was informed of his right to have counsel present during any interrogation he would be subjected to thereafter.” The extent of the “talk”, the nature of it, what discussion, if any, took place with regard to the police report and the extent of it, was not disclosed. We think that the appellant was in custody within the meaning of Miranda at the time he accompanied the officer from the school to the police station.

We cannot