Finke v. State

• Decision Date: 08 December 1983
• Docket Number: No. 1804,1804
• Citation: 56 Md.App. 450,468 A.2d 353
• Parties: Allen Glenn FINKE v. STATE of Maryland. Sept. Term 1982.
• Court: Court of Special Appeals of Maryland

Page 450

56 Md.App. 450

468 A.2d 353

Allen Glenn FINKE v. STATE of Maryland.

No. 1804 Sept. Term 1982.

Court of Special Appeals of Maryland.

Dec. 8, 1983.

John L. Kopolow, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland on brief, for appellant.

Valerie V. Cloutier, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Maryland, Warren B. Duckett, Jr., State's Atty., Anne Arundel County and Gerald Anders, Deputy State's Atty., Anne Arundel County on brief, for appellee.

Argued before WILNER, BLOOM, MORTON, JAMES C., Jr. (Retired, specially assigned), JJ.

BLOOM, Judge.

Appellant, Allen Glenn Finke, was convicted by a jury in the Circuit Court for Anne Arundel County of felony murder. This court in an unreported per curiam opinion (Finke v. State, No. 899, September Term, 1980, decided June 1, 1981) reversed the conviction and remanded the case for a new trial because the lower court had failed to make a pre-trial determination on Finke's motion to suppress an inculpatory statement given by him to the police. Md.Rule 736f.

Appellant was retried in the same court and was again convicted by a jury of felony murder. On this appeal he asserts:

I. The evidence was insufficient to sustain the conviction for felony murder.

II. The trial court erred in denying appellant's motion to suppress his oral statements.

III. Appellant was denied due process of law when the trial court considered the accuracy of his oral admissions in denying his motion to suppress them.

IV. The trial court erred by receiving into evidence the extrajudicial statements given to police by State witness Donald Blevins.

V. The trial court erred by allowing the State to read to the jury, as part of its case-in-chief, the testimony appellant gave at his first trial.

VI. The trial judge erred in refusing to allow a defense psychiatric expert to give his opinion of the voluntariness of appellant's admissions.

VII. The trial court erred by admitting evidence of appellant's prior, unrelated criminal activity.

VIII. The trial court erred in denying appellant's request for a change in venue.

FACTS

On Friday, June 8, 1979, the appellant's aunt, 61-year-old Leonette Shilling, was found stabbed to death in her home on Fort Smallwood Road in Riviera Beach. Mrs. Shilling's body was discovered by her husband, Calvin S. Shilling, when he returned to the home some time after 2 p.m. ¹ She had been stabbed twelve times in the neck, back, chest, and hand. Several of the wounds, which varied in depth from one to three inches, were lethal. It appeared that Mrs. Shilling had been taking a nap immediately prior to being attacked. There were blankets on the living room couch, her bedroom slippers were beside the couch, and her three-year-old grandson, Michael Somerfield, for whom she was babysitting, was found asleep and unharmed on the couch. Evidently Mrs. Shilling was murdered only a short time before her husband arrived home. One of the Shillings' married daughters, Patricia Sayers, testified that she had talked with her mother by telephone from 1:40 to approximately 1:50 to 1:55 p.m. and that there was no indication that anyone other than the grandson was in the house with her mother at the time. When Mr. Shilling returned to the house, he found the front door unlocked and ajar. He testified that this door was kept locked and was rarely used, as the family and visitors customarily entered the house through the kitchen door located at the side of the house. He also testified that he and his wife had planned to leave June 6 for a five day trip to Las Vegas but that the trip had been postponed at the last moment. The Shillings owned two cars, a Lincoln Continental and a Chevrolet. Mr. Shilling testified that when he and his wife traveled they drove the Lincoln to the airport and left the Chevrolet parked beside the house. Generally, Shilling drove the Chevrolet to work; but on the morning of the murder he drove the Lincoln, leaving the Chevrolet parked beside the house. Although there were substantial sums of money in various locations in the house, including money on top of a dresser in the bedroom, it appeared that no money or anything of value had been taken.

The evidence that implicated appellant in the murder came principally from two sources: (1) the testimony of Donald Blevins, his friend and roommate, and (2) the statements and admissions which the appellant made during police interrogation, as related by the officers who conducted the interrogation.

Blevins, age 24, testified that he and the appellant, age 26, had been friends for many years. They lived together, sharing a house with Blevins' brother and sister-in-law, and worked together as carpenters for a construction company. On the night before the murder, the two had been out until very late, drinking and playing pool at a bar, and had arrived home at approximately 4 a.m. Suffering the effects of their activities of the previous night, Blevins and the appellant overslept and did not report for work. Blevins testified that they arose around noon, dressed, and then drove in his truck to the Three B's Bakery where they had breakfast. Afterwards, they drove around the neighborhood, visiting various acquaintances in an attempt to obtain some marijuana. Blevins indicated that in doing so they passed by the Shilling house at least once. Unable to locate a marijuana source, the two then drove to the parking lot of the Acme grocery store on Fort Smallwood Road, which is located behind and to one side of the Shilling house. There Blevins, who was driving, parked the truck in a space facing in the general direction of, and 200 to 300 feet from, the rear of the Shilling house. Blevins said they arrived there between 1:30 and 2:30 p.m.; he also claimed that he did not recall why they had driven to the parking lot or whose idea it was to do so. After they had been there for a few minutes, Blevins testified, the appellant, without saying where he was going, climbed out of the cab and walked towards the front of the truck. Blevins claimed that he did not observe where the appellant went because his view was blocked by the newspaper he was reading. Approximately 10 minutes later the appellant returned, saying only, "let's go," and they then drove from the Acme lot to the home of appellant's father. There they spent the remainder of the afternoon working on appellant's Ford van, which was inoperable, preparing to rebuild the engine. Blevins testified that the appellant had bought the van, which had broken down a month prior to the murder, with money borrowed from the appellant's father and that the appellant did not then have the money to pay for the repairs. Blevins also testified that he and the appellant each owed one Russell Sikorski $30 for marijuana. ² Finally, Blevins testified that the appellant owned a penknife with a blade 3 inches in length and approximately 1/2 inch in width and that he believed the appellant had been wearing cut-off jeans on the day of the murder.

Joseph Folio, a clerk at the Acme grocery store, identified photographs of the appellant and Blevins as being those of two men he found in the men's room of the store some time before noon with a pie taken from the store shelves. He did not report the incident to police until after he learned that an arrest had been made in the Shilling homicide. John Williams Simpson, Jr., the manager of the clothing store located directly behind the Shilling house, testified that he observed Blevins' truck parked in the space identified by Blevins some time between noon and 2 p.m. on the afternoon of the murder.

The appellant was first questioned by police concerning the killing one month after it occurred. On the afternoon of July 10, 1979, Detective Thomas Mock of the Anne Arundel County Police went to the appellant's residence and asked the appellant to accompany him to the Millersville Station for questioning. The appellant at first demurred, saying that he was scheduled to play baseball that evening but agreed when Mock told him that the questioning would not take long and that after the interview Mock would drive him to the game. After arriving at the station at 6:40 p.m., the appellant was turned over to Detective James Moore, who was in charge of the investigation into the Shilling murder. Detective Moore informed the appellant of his Miranda rights and told him that he was not under arrest and could leave at any time. The appellant was then asked to describe his activities on the date of the murder. He said that he had been out late the night before; that he and Blevins had slept in that morning; that he had awakened, dressed and driven around looking for marijuana; ³ that they had had breakfast at the bakery from 1:30 to 2:30 p.m.; and that afterwards they had driven to his father's house to work on his van. He also said that they passed by the Shilling house two or three times while looking for marijuana and that, although he had spent considerable time there when he was younger, he had not been in his aunt's house for more than a year and a half. The questioning continued throughout the evening with the appellant indicating that he was unable to remember all the events of the day in question. Sergeant Richard Davis said he questioned appellant alone from about 9:45 p.m. to 11:50 p.m. on July 10, 1979, at the Millersville station. ⁴ During this interrogation appellant repeated the recitation of what he had done on June 8 and denied that he had been in the Shilling house or that he had any personal knowledge of or involvement in the murder. In an attempt to aid his recall, it was suggested that the appellant undergo hypnosis. He agreed and a hypnotist, Dr. Richard Ittner, was brought to the station. During the hour-long session which followed, however, Ittner was unable to hypnotize the appellant, and he merely repeated the account of his activities which he had given earlier. Around...