Mills v. State

• Decision Date: 15 September 1976
• Docket Number: No. 135,135
• Citation: 363 A.2d 491,278 Md. 262
• Parties: Clement Franklin MILLS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 262

278 Md. 262

363 A.2d 491

Clement Franklin MILLS v. STATE of Maryland.

No. 135.

Court of Appeals of Maryland.

Sept. 15, 1976.

George E. Burns, Jr., and Arnold M. Zerwitz, Asst. Public Defenders, Baltimore (Alan H. Murrell, Public Defender, and Dennis M. Henderson, Asst. Public Defender, Baltimore, on the brief), for appellant.

Leroy Handwerger, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE and ELDRIDGE, JJ.

SMITH, Judge.

Appellant, Clement Franklin Mills (Mills), was convicted by a Montgomery County jury of rape, armed robbery, and kidnapping (two counts). The Court of Special Appeals affirmed the convictions in Mills v. State, 28 Md.App. 300 345 A.2d 127 (1975). We granted the writ of certiorari in order that we might consider the contentions of Mills (1) that 'the trial court err(ed) in denying (his) pre-trial motion to suppress evidence seized from (his) home pursuant to a search and seizure warrant,' and (2) that it also 'err(ed) in permitting the introduction of testimony concerning a blood sample which was illegally obtained from (him).' We, also, shall affirm.

The basic facts were set forth for the Court of Special Appeals in 28 Md.App. at 301-03, 345 A.2d 127. We shall relate only such facts here as are requisite for an understanding of the issues presented. We shall consider the contentions of Mills in inverse order.

i

The blood sample.

The State called an expert witness, an employee of the Federal Bureau of Investigation, to testify concerning results of tests he performed on pants and underpants worn by the victim on the night of the offense. He testified on direct examination that his analysis revealed the presence on both garments of semen containing spermatozoa. Mills' attorney asked him on cross-examination whether he was 'able to tell anything else about the semen, other than it contained spermatozoa.' The witness replied in the affirmative. He was then asked '(w)hat else (he) could . . . tell.' The reply included the information that the expert 'determined in the semen stain the presence of A blood group factor.' On redirect examination the State elicited from the witness that he had tested a sample of Mills' blood and determined that it was group A blood. Mills claims that the trial court erred in permitting this testimony. The short answer to this contention is that no objection was interposed in the trial court to the question which brought forth the response that the blood obtained from Mills 'was determined to be group A blood.' Maryland Rule 522 d 2 requires that 'objection to the admissibility of evidence shall be made at the time when such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent, otherwise the objection shall be treated as waived.' There having been no objection, the point is not preserved for appellate review.

ii

The search and seizure.

This controversy concerns the admission into evidence of a hunting knife and sheath identified by the victims as similar to the one used in connection with the crime. The knife and sheath were recovered from the home of Mills when a search was made pursuant to a search warrant.

The objections of Mills are twofold, that his home address was educed from him in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that probable cause for issuance of the search warrant was not shown.

a Miranda

The application for the search warrant and the affidavit submitted in support of it specified the address of the house which it was proposed to search, described the exterior of the house in some detail, and also described a second floor bedroom. Neither the application nor the affidavit gave the source of these descriptions other than the statement in the affidavit that the information in the affidavit was 'on the basis of information gathered by (the applicant) and on the basis of information received by (him) as a member of the Montgomery County Department of Police.'

After Mills was taken into custody he was given the warnings required by Miranda. He asked for an attorney. Efforts to obtain an attorney at that time were fruitless. The police did not attempt to further question Mills about the offenses. They did, however, ask him for his address because of '(t)he necessary forms that need(ed) to be completed . . ..' Inquiry also was made as to the specific part of the house in which he lived. It was explained at the suppression hearing that this inquiry was made because their 'INVESTIGATION AT THE TIME OF THE ARREST revealed there was certain pertinent physical evidence that might be present in his home' and the police desired this specific information in order to apply for a search warrant for the knife.

Questioning at the suppression hearing of the officer who made the affidavit developed that the sources of his information were Mills; Mills' uncle, Thomas Martin; and a lady who accompanied Martin to the police station. The officer said that he did not ask Martin or the lady what color walls there were in Mills' bedroom because he had 'obtained that information from Mills himself.' He did, however, obtain from them information '(t)hat (Mills) in fact did reside at number sixteen Park Avenue, at Gaithersburg,' the same information that he had obtained from Mills himself.

In Miranda the Supreme Court held that if an accused 'indicates in any manner (during 'custodial interrogation') and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.' Thus, the issue raised by Mills' argument on this point is the interpretation to be given 'no questioning.' All three cases before the Court in Miranda, unlike the case at bar, involved self-incriminating statements by those being interrogated. Evidence of the intended thrust of the opinion in Miranda is gleaned from the analysis by Chief Justice Warren of the effect of police methods of interrogation:

'In essence, it is this: To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must 'patiently maneuver himself or his quarry into a position from which the desired objective may be attained.' When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights.

'Even without employing brutality, the 'third degree' or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.' Id. 384 U.S. 455, 86 S.Ct. 1617.

That the primary concern of the Court was protection of the individual's Fifth Amendment right against self-incrimination, specifically to prevent submission of an individual's will to coercive pressures exercised by the police, is shown by that part of the opinion in which the Court said:

'It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. The current practice of incommunicado interrogation is at odds with one of our Nation's most cherished principles-that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispell the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.

'From the foregoing, we can readily perceive an intimate connection between the privilege against self-incrimination and police custodial questioning. It is fitting to turn to history and precedent underlying the Self-Incrimination Clause to determine its applicability in this situation.' Id. 384 U.S. 457-58, 86 S.Ct. 1619.

A determination of whether Mills' rights under Miranda were violated depends on whether the questions asked of him, after his request for an attorney, were of a type which would create a risk that his free will to speak or to remain silent in the face of possible self-incrimination would be overcome. The assumption behind this approach, that the Miranda prohibition against 'all questions' after a request for an attorney, need not be interpreted literally, is supported by Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The defendant there was arrested in the early afternoon in connection with certain robberies. He was advised of his Miranda rights. When the officer began questioning him about one of the robberies the officer was advised that the defendant did not wish to answer any questions about the robberies. The questioning ceased. The arrest papers were completed and Mosley was taken to a cell. Some time later a second officer removed Mosley from the cell in order that he might question him about a shooting in no manner involved with the robbery investigations. Mosley had not been arrested on that charge nor had he been interrogated by the original officer relative to that incident. He was again advised of his Miranda rights. He did not indicate a desire to consult with an attorney not did he indicate that he did not wish to talk about this particular homicide. During...