Simms v. State

¹⁶³ Orth, J., delivered the opinion of the Court. The appellant, charged with the murder of Marguerita LaSueur, was found guilty of murder in the first degree without capital punishment by a jury in the Circuit Court for Harford County and sentenced to imprisonment for life. 1 The body of Marguerita LaSueur, an octogenarian resident of The Chase Home, a home for elderly women located in Annapolis, was found on the premises in a garden type tool shed on 18 August 1961 about 4:30 P.M. by the manager of the home. She was lying on the floor on her back, her right arm outstretched, her left arm almost to her side. Her dress was pulled up and her underpants were down below her knees.

She had no shoes on; one shoe was under a table about two and a half feet away and the other was in an anteroom of the tool shed. There were several bruises and lacerations about her throat. There were stains on her slip and a fresh stain on the floor near her left leg. Near her right side was a broken pocket-type yellow comb.

It was the opinion of the medical examiner that she died of manual strangulation. Autopsy findings included that material from the vagina was negative for sperm and prostatic secretion but scrapings from the leg were positive for such secretion. Wood chips from the floor boards containing the stain, the comb and the deceased’s slip were sent to the F.B.I. Laboratory and an analysis made. Stains on the lower portion of the slip contained semen and a very small quantity of blood.

The semen originated from a man who was a secretor 2 and that man belonged to Blood Group “A.” The stain ¹⁶⁴ on the wood chips was also semen from a secretor belonging to Blood Group “A.” The comb contained hairs. It was found that they had been artificially colored a red-brown and were of Negroid origin. These findings were communicated to the Annapolis Police Department by telephone on 23 August and by written report mailed on 25 August. On August 27, 1961, about 1:00 A.M., Officer Wallace L. Forte of the City of Annapolis Police Department, while operating a police cruise car, received a call to go to 28 Shaw Street.

When he arrived at that address a large crowd was there •and he observed a woman lying on the porch. “She was bleeding from the head — top of the head — head wound. * * * I observed that she was very still; no motion at the time.” He •could not tell at that time whether she was conscious or unconscious but she “was very quiet and still.” He called an ambulance ■and she was taken to the hospital. The officer ascertained that the woman’s name was Grace Brown and that she lived in an upstairs apartment of 28 Shaw Street. He tried to find out what had occurred and received information from one of the persons •on the scene that the appellant, who was then standing in the rear of the crowd, had gone to the upstairs of 28 Shaw Street. 'The officer approached the appellant and “noticed he had quite a good deal of blood on him.” 3 He had “blood on his hands, •forehead, edge of his hair and also his shirt and trousers.” The ■officer asked the appellant “where he got the blood from” and the appellant stated that it came from his mother, that for “strangulization” he had taken her to the hospital. The officer checked with the hospital and again asked the appellant “where the blood had come from, since it had not come from his mother. ¹⁶⁵ * * * the answer from the hospital stated that the blood did not come from his mother.” The appellant “then admitted that he had been up in Grace Brown’s apartment * * * he had gone up there with a box of shrimp for her and him to eat, and he observed Grace Brown lying in bed with her back to him and he stated he didn’t know what came over him and made him do it, but he struck her in the head with this hammer.” The officer placed the appellant under arrest. “I charged him then and there with assault and battery on Grace Brown and told him he was under arrest and called for another cruise car to take him to Headquarters.” The appellant was booked about 2:00 A.M. on 27 August, remained in custody, was tried on an assault and battery warrant before a trial magistrate on 30 August and found guilty.

Lieutenant Bernard Kalnoske of the Annapolis Police Department was investigating the homicide of Marguerita LaSueur. On arriving at the police headquarters about 7:30 A.M. on 27 August he noted that the appellant had been booked and was in custody in the rear cell block. At that time he had received the information about the hair from the F.B.I. and remembered from an interview with the appellant on 23 August that he had a “reddish-type cast to his hair.” About 8:00 A.M. the appellant was brought to the fingerprint counter in a hallway near the cell block. Kalnoske told the appellant that “we were getting hair specimens and saliva samples from all the suspects we had been interviewing in regards to the murder case.

The appellant said something to the effect in regards, ‘Are you trying to pin that murder on me?’ ” Kalnoske made a statement to the appellant “in regards to the purpose of the hair and saliva samples, for comparison with evidence that we had recovered at the scene of the crime * * * that the evidence would be forwarded to the F.B.I. Laboratory in Washington.” Kalnoske got a pair of scissors and envelopes and “demonstrated (to the appellant) the method in which we obtained the saliva sample.” Kalnoske said, “I showed him how it was done, dropping a few drops of saliva on the paper, and then he done it * * * He followed my example” and gave the saliva specimen. Kalnoske then cut off hairs from the front, back and sides of the appellant’s head. The specimens were placed in envelopes and marked. ¹⁶⁶ The appellant was standing while the specimens were taken and was not in restraint in any manner. Corporal Raymond More-land of the Annapolis Police Department was present at the time the hairs and saliva were obtained.

He said, although he could not give the exact words, that the appellant “willingly let Lt. Kalnoske take the hair samples and gave us the saliva sample * * * There was permission given by John Emory Simms to go ahead and take the hair samples, and he would give us the saliva sample.” The hairs and saliva obtained from the appellant were sent to the F.B.I. Laboratory. The saliva was found to originate from a secretor who belonged to Blood Group “A.” There was expert testimony that the semen on the wood chips and on the slip could have originated from the appellant. The hairs were of Negroid origin and artificially colored red-brown.

They were compared with the hairs from the comb and were similar “under microscopic characteristics.” It was the conclusion of the expert witness that the hairs found in the comb could have come from the appellant. On appeal it is contended that the arrest of the appellant on 27 August 1961 was illegal and therefore the hair and saliva specimens were unlawfully obtained from him. He urges that the lower court erred: 1) in refusing to instruct the jury on the illegality of his arrest ; 2) in admitting testimony regarding the hairs and saliva; 3) in admitting confessions “rendered involuntary and thus inadmissible where predicated upon a comparative analysis of specimens of hair and saliva obtained from” him illegally. It is established that an arrest without a warrant is lawful where based upon a misdemeanor committed in the presence of the arresting officer.

Shelton v. State, 3 Md. App. 394, 398 . We think it clear in the instant case that the crime for which the appellant was arrested was not committed in the presence of the arresting officer. 4 But it has long been the rule in this State ¹⁶⁷ that a police officer may arrest without a warrant where there is probable cause to believe that a felony has been committed and that the person arrested committed the felony. Boone v. State, 2 Md. App. 479, 481. Probable cause in this context exists when the facts and circumstances within the knowledge of the arresting officer, or of which he had reasonably trustworthy information, are sufficient to warrant a reasonably cautious person in believing that a felony had been committed by the person arrested.

Michaels v. State, 2 Md. App. 424, 428. “[T]he rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that wffiich would arouse a mere suspicion.” Edwardsen v. State, 243 Md. 131, 136 ; Terrell v. State, 3 Md. App. 340, 359 . In assessing the validity of an arrest under the rule the essential ingredient is that probable cause existed within the knowledge of the arresting officer and not that he necessarily construed that knowledge correctly. It is not the belief of the officer that determines the validity of the arrest; it is whether, in the situation in which he found himself, he had probable cause to believe a felony had been committed and that the person arrested committed it. We think untenable the proposition that an arrest based on probable cause becomes unconsitutional because the crime is inaccurately described by an officer or because the officer said the arrest was for a misdemeanor when there was probable cause to believe it was a felony. “To make constitutional questions turn on the term chosen by police officers to describe their activity * * * is to engage in a futile and unwarranted exercise in semantics.” Ralph v. Pepersack, 335 F. 2d 128, 134 (4th Cir.).

Nor do we think that the offense of which the accused is subsequently charged or convicted is controlling. Certainly if an arrest is made on probable cause that a robbery was committed, the fact that the accused was charged only with assault or having been charged with robbery and assault was convicted only of assault would not invalidate the arrest. As the court said in Bell v. United States, 254 F. 2d 82 (D. C. Cir.), cert. den. 358 U. S. 885 , at page 86: “But this description given by the officer does not go to the question of probable cause. The question is not ¹⁶⁸ what name the officer attached to his action; it is whether, in the situation in which he found himself, he had reasonable ground to believe a felony had been committed and that the men in the car had committed it.

The situation was a sudden, unanticipated development. Suppose the officer had arrested these men upon belief that they had committed a housebreaking, but the legal lights in charge of preparing indictments had decided the offense was robbery; or suppose later information had disclosed a murder. Would the arrest have been invalid? Of course not.

So to hold would make a mockery of the Supreme Court’s admonition to us that probable cause is a matter of practicalities, not of technicalities.” In the instant case we believe that there was probable cause for the arresting officer to believe that a felony had been committed and that the appellant committed it. Assault with intent to murder is a felony. Md. Code (1967 Repl. VoL), Art. 27, § 12.

Intent is the essence of that felony and if the intent was carried out, the resulting crime would have had to be either first or second degree murder. Marks v. State, 230 Md. 108, 112 . But a specific intent to murder is not a necessary element for conviction of assault with intent to murder. It is sufficient if there was an intention to commit grievous bodily harm.

Lawrence v. State, 2 Md. App. 736, 738 . “The essential distinction between murder and manslaughter is the presence or absence of malice, which is the intentional doing of a wrongful act to another without legal excuse or justification. The inference of malice may be drawn from the fact of the use of a deadly weapon directed to a vital part of the body. Chisley v. State, 202 Md. 87 , 95 A. 2d 577 . The law presumes that in the absence of mitigation, all homicides are committed with malice and constitute murder.

This presumption also applies to cases of assault with intent to commit murder.” Tate v. State, 236 Md. 312, 317 . The arresting officer saw a woman lying motionless on the porch ¹⁶⁹ bleeding from the head. He received information that the appellant had gone upstairs in the premises where the victim lived. He observed that the appellant, who was on the scene, had “a good deal of blood * * * on his hands, forehead, edge of his hair and also his shirt and trousers.” There were reasonable grounds that the appellant’s explanation of the presence of the blood on his person was untrue from information received from the hospital.

Then the appellant said he went to the room of the victim and saw her lying in bed with her back to him. Although he did not know what came over him and made him do it, he admitted that he struck her in the head with a hammer. The admissions were not the result of a custodial interrogation of the appellant, who was accosted on the street by the officer and merely questioned as to his identity and actions. Morgan v. State, 2 Md. App. 440 ; Guadio and Bucci v. State, 1 Md. App. 455 .

The observations of the officer and the admissions of the appellant constituted probable cause to believe that the appellant had committed the felony of assault with intent to murder. We hold that the arrest was valid. 5 The finding that the arrest was valid would appear to dispose of the contentions of the appellant as they are predicated upon the illegality of the arrest. But, despite the legality of the arrest, if the obtaining of the hair and saliva specimens was in violation of his constitutional rights, the question is whether evidence regarding them would have been properly admissible. We think it clear that the constitutional right of the appellant against self-incrimination was not violated by the taking of the specimens. “[T]he privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which ¹⁷⁰ makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” Schmerber v. California, 384 U. S. 757, 764 ; 86 S. Ct. 1826, 1832 .

Schmerber held that blood test evidence, although an incriminating product of compulsion, was neither an accused’s testimony nor evidence relating