Plumley v. State

• Court: Maryland Court of Appeals
• Writing for the Court: Before MURPHY; MORTON
• Citation: Plumley v. State, 4 Md.App. 671, 245 A.2d 111 (Md. App. 1968)
• Decision Date: 13 August 1968
• Docket Number: No. 251,251
• Parties: William Paul PLUMLEY v. STATE of Maryland.

Page 671

4 Md.App. 671

245 A.2d 111

William Paul PLUMLEY v. STATE of Maryland.

No. 251.

Court of Special Appeals of Maryland.

Aug. 13, 1968.

Sherman W. West, Suitland, for appellant.

William E. Brannan, Asst. Atty. Gen. with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., and Edward P. Cames, State's Atty. and Asst. State's Atty. for Prince George's County respectively, on brief for appellee.

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

MORTON, Judge.

The appellant was found guilty by a jury in the Circuit Court for Prince George's County of an attempt to murder John Preston Scott and was sentenced to imprisonment for a term of 15 years.

At the trial Scott testified that he owned and operated an 'all night' restaurant known as the Branch Avenue Coffee Shop and that the appellant had worked for him and lived in the residence occupied by Scott and his wife. He discharged the appellant two or three days before 22 December 1965 'for not doing his work properly and taking money from the pool tables.' ¹ In the early morning hours of 22 December Scott was at his home and saw the appellant drive past the house on two occasions in a maroon and cream colored Ford. Shortly thereafter Scott drove a Cadillac car, owned by his brother-in-law, which car the appellant knew that Scott used, to the restaurant and parked it in back of the building. At 4:00 A.M. Scott saw the Ford at the restaurant. About noon Scott attempted to leave the restaurant but the Cadillac would not start. He thought the car was out of gas and sent a boy to get some. When the boy returned with the gas he opened the hood to pour some in the carburetor and observed a 'ball of wire taped up' and 'wires leading from this wire down to a pipe, down by the steering mechanism and another wire was run over and was tied to a bolt on the car water pump.' He told the boy who had gotten the gas that he thought it was a bomb and to stay away from it, called the police, and told people in the restaurant that there was a bomb in the car. The appellant came into the restaurant about an hour later and Scott said that when the appellant saw him he 'was real nervous and real white' and 'was shaken and had a real scared look on his face.' This impression of the appellant's reactions was corroborated by other witnesses. There was testimony by a sergeant of the U. S. Army Explosive Ordnance Disposal Group, qualified as an explosive expert, that he dismantled the bomb and that had it exploded the driver of the car would have been killed. Police officers testified that the pipe comprising the bomb was a two-inch pipe coupling which had a notation '1.05' on it. Seventy-five hard-ware stores in the area were checked and at all of them the price of a similar coupling was ninety cents except at Candey's Hardware Store where it was $1.05. The manager of Candey's testified that a paint shaking machine at his store occasionally spattered paint into the bin containing such couplings, that the appellant had been a customer in the store and that the pipe found in the car was similar to those sold in his store. The police obtained several price tags from the bins which were spattered with paint. The police also found two rolls of wire at the Shanty Restaurant. F. B. I. experts testified that the wire in the bomb came from one of these rolls of wire, that paint particles found on the pipe portion of the bomb matched the paint particles on the price tags and that the powder used in the bomb was Hercules Bullseye Smokeless powder. The manager of a store called the Gun Hospital testified that on 17 December the appellant had purchased two cans of Bullseye gun powder and a can of Unique gun powder. Two electricians testified that about 18 December the appellant asked them where he could get a dynamite cap. Another witness testified that on a number of occasions the appellant had said he wanted to kill Scott, that he had to kill Scott and had asked for some poison. The appellant finally asked if the witness knew where he could get a dynamite cap. A cab driver testified that he had picked the appellant up about 2:30 P.M. on 21 December and driven him to a rural, wooded area on Tucker Road where the appellant went into the woods and returned with a long, thin tag containing a square object. He then drove him to the Shanty Restaurant and the appellant requested that the driver not show the Tucker Road stop on his manifest. The owner of the Shanty Restaurant saw the appellant standing in front of the restaurant on 21 December about 5:30 P.M. The appellant had a long, thin package, about 4 inches thick and 2 feet long. He drove the appellant to Branch Avenue Coffee Shop and saw the appellant place the package against the back of the shop under a box. A waitress at the coffee shop testified that the appellant had shown affection for Scott's wife. Another waitress at the shop said that the appellant told her that he loved Scott's wife and would go so far as to kill for her. Both testified that about 5 December the appellant had taken a shotgun shell from his pocket, poured out the powder and ignited it saying that a little bit would not hurt anyone but enough of it would blow somebody sky high. Scott testified that several months previously the appellant told him he could make a bomb out of shotgun shells, a pipe and caps. Another witness said that the appellant told him that if he could get some medicine that would kill a man it would be worth some money.

The appellant, testifying on his own behalf, denied any relationship with Mrs. Scott, denied purchasing gun power at the Gun Hospital, alleging he purchased shotgun shells, denied driving by Scott's home in the early morning of 22 December, denied purchasing the pipe and denied any conversations about killing Scott. He admitted working at the Shanty Restaurant, admitted driving a maroon and cream colored Ford on 21 and 22 December, admitted that he was an automobile mechanic and admitted that he had rather extensive training in making bombs. He said that if he had put the bomb in the car it 'would have went off.'

I

The State in its opening statement said: 'The Defendant, we will then show, was questioned on or about 27 December before Sheriff Jamieson and Detective Sergeant Husk, at which time he indicated that he did in fact know how to make a bomb * * *.' At this point, out of the presence of the jury, defense counsel objected, arguing that the State could not 'go into any statement this Defendant made at this time,' asking, 'what if it is not admissible?' The State said it would prove the statement was voluntarily made, and the court said that it would 'deal with it at that time.' Defense counsel asked if the court would 'then consider (the remarks) improper'-in the event the admission was ruled inadmissible, 'would the court grant a mistrial?' and the court said, 'We will have to face it at that time.'

On the fourth day of the trial the State called the Sheriff in rebuttal and during his testimony he said that he 'conversed' with the appellant on 27 December in the interrogation room at the police station. 'The conversation dealt with the construction of a bomb and Mr. Plumley, as I recall, drew us a diagram as to the construction of one * * * (H)e told us how one could be made, and indicated that he had the knowledge and ability to build one.' That testimony came into evidence without objection.

The appellant contends on appeal that the lower court erred in allowing this testimony in evidence. He concedes that the statements now challenged were not a confession but alleges that they were admissions and urges that they fell 'within the doctrines' of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. While it is correct that Miranda prohibits the admission of statements by an accused made during a custodial interrogation, be they inculpatory or exculpatory, in the absence of observance of the procedural safeguards enunciated, Miranda is not applicable as the appellant's trial commenced before 13 June 1966. Crumb v. State. 1 Md.App. 98, 227 A.2d 369. Therefore, they were properly admissible if they were voluntarily made. For while an admission which is significantly incriminating but short of a confession, must, like a confession, have been made voluntarily and without improper inducement to be evidence against the accused, the requirement on the State to show preliminarily to the judge, before its admission, that a confession is voluntary-unless the fact is conceded-does not apply to an admission. Stewart v. State, 232 Md. 318, 323-324, 193 A.2d 40. ² Here the admissions came into evidence without objection and there was no allegation below or on appeal that they were the product of force, violence, threats, inducements or promises. Since the appellant did not object to the introduction below on the ground that the admissions were involuntarily made, the question is not properly before us. Md. Rules, 1085; Gaudio and Bucci v. State, 1 Md.App. 455, 463, 230 A.2d 700. We do not agree that the colloquy between the court and defense counsel (not the same counsel as counsel on appeal) was sufficient to preserve the question. As to the contention that the court should have granted a mistrial, no motion for a mistrial was made at the time of the opening statement by the State (we think it clear that at that time counsel merely inquired of the court if it would grant a mistrial if the admissions were not admitted) nor thereafter (the admissions were admitted without objection). In the absence of a ruling by the court, there is nothing for us to review.

II and III

Doris Thompson, a waitress at the coffee shop, had given the State a statement in which she said that the day after the appellant was fired she had asked him if he had any idea of killing Scott or of getting someone to do it. The appellant told her he was not going to hurt Scott 'but that it would all be over...