Mills v. State

• Decision Date: 25 June 1987
• Docket Number: Nos. 22,s. 22
• Citation: 310 Md. 33,527 A.2d 3
• Parties: Ralph William MILLS v. STATE of Maryland. & 79, Sept. Term 1985.
• Court: Maryland Court of Appeals

Page 33

310 Md. 33

527 A.2d 3

Ralph William MILLS v. STATE of Maryland.

Nos. 22 & 79, Sept. Term 1985.

Court of Appeals of Maryland.

June 25, 1987.

Michael R. Braudes, Asst. Public Defender (Alan H. Murrell, Public Defender and George E. Burns, Jr., Asst. Public Defender, on the brief) Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and SMITH, ^* ELDRIDGE, COLE, RODOWSKY, COUCH ^* and McAULIFFE, JJ.

ELDRIDGE, Judge.

In March 1985 Ralph William Mills was tried for first degree murder before a jury in the Circuit Court for Allegany County. His appeal challenges the resulting conviction and death sentence. We shall affirm.

The parties have agreed pursuant to Maryland Rule 828(g) that the following facts are relevant to the disposition of this appeal. Mills shared cell number 20 on "G-One" tier at the Maryland Correctional Institution in Hagerstown with Paul Robin Brown. At 10:47 p.m. on August 6, 1984, correctional officers were called to the cell to investigate a disturbance. When the officers arrived, Mills demanded to be released from his cell, saying, "my cell buddy is dead." The cell door was opened and Mills emerged, carrying a blood-covered "shank," or home-made knife, at his side. Mills stated several times that he had "killed his cell buddy." Brown's body was found lying on his bunk, stabbed six times in the chest and thirty-nine times in the back.

About three weeks before this homicide, Mills had written to the warden, threatening to kill his cell mate (who at that time was not Paul Robin Brown) if certain complaints, primarily concerning visitation, were not satisfactorily resolved. At the trial another inmate, David Gallahan, testified for the defense that Brown had lent him the murder weapon prior to the homicide, and had asked for and received it back on the day of the incident.

Mills presents us with numerous questions for review, some relating to the guilty verdict and some relating just to the sentence of death.

I.

The first two questions presented concern the denial of Mills's motions to strike two prospective jurors for cause. Mills's counsel conceded in this Court that Mills had exercised only sixteen of his allotted twenty peremptory challenges. ¹ Neither of the prospective jurors whom Mills moved to strike for cause was impanelled to serve as a juror or to serve as an alternate.

Assuming for purposes of argument that the trial judge should have dismissed the two veniremen for cause, it is difficult to understand how his failure to do so could have prejudiced Mills when the defendant's peremptory challenges were not exhausted and the two veniremen were not seated. We have previously stated that when an accused has not exhausted his peremptory strikes, failure to disqualify a prospective juror for cause is not reversible error. White v. State, 300 Md. 719, 728, 481 A.2d 201 (1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 837 (1985). See Booth v. State, 306 Md. 172, 185, 507 A.2d 1098 (1986), vacated on other grounds, --- U.S. ----, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987).

We have also repeatedly held that a claim of error in the inclusion or exclusion of a prospective juror is ordinarily abandoned when the defendant or his counsel indicates satisfaction with the jury at the conclusion of the jury selection process. Booth v. State, supra, 306 Md. at 185, 507 A.2d 1098; Foster v. State, 304 Md. 439, 450-451, 499 A.2d 1236 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986); Thomas v. State, 301 Md. 294, 310, 483 A.2d 6 (1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985); White v. State, supra, 300 Md. at 729, 731, 481 A.2d 201; Calhoun v. State, 297 Md. 563, 579-580, 468 A.2d 45, 52 (1983); cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984). In this case, after the voir dire and peremptory strikes, the defense was asked if the jury panel was acceptable to the defendant. After checking the identity of one juror, defense counsel stated: "Your Honor, the Jury as impaneled is acceptable to the Defense." Under these circumstances it would be idle for us to consider whether or not the trial court should have struck the two veniremen for cause.

II.

Mills contends that the trial court should not have admitted into evidence two color photographs of the victim, showing his stab wounds and blood.

At trial this issue developed as follows. The first photograph admitted into evidence (State's Exhibit 3) was a color photograph of the prison cell wall above the victim's bunk. The photograph depicts three words fingerpainted in blood as well as a portion of the victim's body. Counsel for the defendant objected that the photograph "[s]hows some bias being a color photograph like it is," and argued that the State should produce a black and white photograph. The trial judge asked: "You concede that the fact that it's color doesn't automatically exclude it?" Counsel for the defendant responded, "I agree." The judge then ruled that if the State could establish that the colors were accurate, the photograph would be admitted into evidence, and afterwards it was so admitted.

The next photographs in evidence (State's Exhibits Nos. 5, 6, 7, 8, 9, 10) were admitted one after another, and resembled the first photograph in size, and coloration. Exhibit 5 depicted the feet of the victim, in socks; no blood was apparent. There was no objection to Exhibit 5 from defense counsel. Exhibit 6 showed the toilet in Mills's cell as it appeared when the homicide was first investigated, with red stained pieces of white cloth or paper visible in the toilet bowl. Defense counsel objected to Exhibit 6. Exhibit 7 showed a corner of the cell, including the window, a cabinet, some clothes drying from a string, and the hand of the victim. No objection was made to the admission of this photograph. Exhibit 8 showed the back of the victim with blood draining from stabbings scattered from the shoulders to the waist level. Defense counsel objected to the admission of Exhibit 8. Exhibit 9 showed the face and chest of the victim, with blood draining from wounds, and there was no objection to this photograph. Exhibit 10 showed the victim lying face up on his bunk and showed part of the wall containing three words fingerpainted in blood. Blood could be seen, but not specific wounds. There was no objection with respect to Exhibit 10.

The trial court admitted Exhibits 5, 7, 9 and 10 into evidence, there being no objection to them. The court postponed consideration of Exhibits 6 and 8, which were objected to, until after the completion of the testimony of the witness who identified and vouched for the accuracy of all six photographs. With the jury excused from the courtroom, the court turned to the two challenged photographs. Mills moved to exclude the photograph of the toilet (Exhibit 6) and the photograph of the victim's back (Exhibit 8), arguing that the photographs would needlessly prejudice the jury, as the pictures reflected facts which were not disputed and which, it was claimed, could have been easily established by testimony and less vivid photographs.

The State pointed to testimony that all of the photographs were fair and accurate. With respect to the picture of the toilet, the State contended that it would not "unduly inflame" the jurors and that its probative value outweighed its prejudicial value. As to the picture of the victim's back wounds, the State argued that it "completes the picture" by showing to the jury wounds not visible in the previously admitted pictures of the victim lying face up, and that it was the only photograph of the back wounds.

The trial judge admitted the challenged photographs, ruling as follows:

"Well, the purpose of the ... introduction of photographic evidence is to enable the side which offers it to offer probative evidence to the triers of fact, to the jurors. I know of no rule of evidence that requires me to guard the sensibilities of jurors whether we know what they are or not. I think the issue is whether or not that photograph would tend to inflame the jurors to in any way provide an exhibit or a bit of evidence in a sensational way. I think if the State sought to introduce eight photographs taken from slightly different angles, or to a series of photographs one of each area where there's a wound, then yes I think it would be potentially inflammatory. But to offer one single photograph of the ... [victim] as he was found, be it in color or black and white, I don't think is unduly prejudicial and designed to inflame, and I don't think it will inflame.

"I'll overrule the objection and permit all the exhibits to come in."

On appeal, Mills contends: "Over objection, the trial court admitted State's Exhibits Eight and Nine." (Brief, p. 12). The actual objection was, "We would object to the No. 8 [the back wounds], Your Honor, along with No. 6 [the toilet bowl]. As to the others we have no objection." Accordingly, the present contention of error in the admission of the State's Exhibit 9, showing the face and chest of the victim, was clearly waived. See Rule 4-322. Moreover, even if No. 9 had been objected to, it is much less bloody and had much less potential for prejudice than No. 8. As we shall conclude that the admission of No. 8 furnishes no ground for reversal, the same conclusion is applicable to the admission of No. 9.

Mills and the State agree that the admissibility of photographs turns upon a balancing of their probative value against their potential for prejudice, and that the application of this test is a matter committed to the discretion of the trial judge. See, e.g., State v. Tichnell, 306 Md. 428, 463, 509 A.2d 1179 (1986); Grandison v. State, 305 Md. 685, 729, 506 A.2d 580, cert. denied, --- U.S. ----, 107 S.Ct. 38, 93 L.Ed.2d 174 (1986); Reid v. State, 305 Md. 9, 20, 501 A.2d...