Mulligan v. State, 343

• Decision Date: 25 April 1969
• Docket Number: No. 343,343
• Parties: Robert T. MULLIGAN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 600

6 Md.App. 600

252 A.2d 476

Robert T. MULLIGAN v. STATE of Maryland.

No. 343.

Court of Special Appeals of Maryland.

April 25, 1969.

Arthur Dale Leach, with whom were on brief: W. Byron Sorrell, Richard S. Paulson, George A. Wilkinson, Jr., Hyattsville, for appellant.

Thomas N. Biddison, Jr., Asst. Atty. Gen., with

whom were on brief: Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, Hilary D. Caplan, Asst. State's Atty. for Baltimore City, Baltimore, for appellee.

Before MURPHY, ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

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, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, 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, 86 S.Ct. 1602. The Court started with the premise, as it did in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, 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, 86 S.Ct. 1602. 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, 86 S.Ct. p. 1612. It stated, however, that confessions remain a proper element in law enforcement. 'Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.' p. 478, 86 S.Ct. p. 1630. 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, 86 S.Ct. 1772, 16 L.Ed.2d 882.

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, 87 S.Ct. 1926, 18 L.Ed.2d 1149. See Smith v. State, 6 Md.App. 59, 250 A.2d 285: Smithson v. State, 5 Md.App. 378, 381-382, 247 A.2d 542.

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 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 apepared 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 weas 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 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 was 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 body. Basically no fractures of the skull. Fracture of the left hand, fracture of the metacarpal 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 ...