text:
    DONALD LEROY THOMAS v. STATE OF MARYLAND
    [No. 231,
    September Term, 1975.]

      Decided November 26, 1975.

      The cause was argued before Moylan, Powers and Lowe, JJ.

      Robert C. Heeney and Joseph M. Quirk, Assigned Public Defenders, with whom were Heeney, McAuliffe, Rowan & Abell on the brief, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and William J. Hickey, Jr., Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

A review of the convictions of the appellant, Donald Leroy Thomas, by a Montgomery County jury, presided over by Judge John F. McAuliffe, for D assault with intent to murder and 2) the use of a handgun to perpetrate a felony gives us the opportunity to assess the impact of Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), upon a jury instruction dealing exclusively with assault with intent to murder in a case where no actual homicide is involved. As we indicated in Part IIB of Evans v. State, 28 Md. App. 640, 349 A. 2d 300, we will not read Mullaney v. Wilbur grudgingly and narrowly:

“Although a very narrow reading of Mullaney v. Wilbur could conclude that it dealt only with instructions, in a jury trial, on the subject of the allocation of the burden of proof on the question of ‘heat of passion on sudden provocation’ in a case where the issue before the jury was whether a guilty verdict should be for murder or only for manslaughter, such would be a grudging and unduly restrictive reading of this groundbreaking decision. A fairer reading makes if clear that what is involved is the broader question of the allocation of the burden of persuasion where a wrongful allocation of that burden will operate to relieve the State of its obligation under the Due Process Clause, as interpreted by Winship, to prove each and every element of a criminal offense beyond a reasonable doubt. This goes beyond the limited defense of mitigation and it goes beyond the limited confines of jury instructions.”

The Facts in this Case

At shortly before midnight on June 2, 1975, Gloria Jean Stewart, aged 29, was shot on an adjacent parking lot as she was leaving the American Legion Hall in Rockville. A bullet fractured a rib, damaged the liver and a kidney and fragments of it lodged against her spine. As a result, she is paralyzed from the vicinity of the navel downward. The appellant had known her for approximately ten years, had fathered a child by her, had lived with her some four years earlier and still visited her and her child. He had visited her earlier on June 2. He testified as to having spoken with her earlier that very evening at the American Legion Hall. Gloria Stewart testified that on an occasion approximately one week earlier, the appellant had put a .25 calibre pistol to her head and indicated that he would kill her rather than see her with another man. Gloria Stewart herself testified that as she was approaching two friends on the parking lot, the appellant suddenly stepped out, announced, “I’ve got your ass now,” and fired at her from about twelve feet away as she stared him straight in the face. Gerald Thomas, no relation to the appellant, was one of the friends whom Gloria Stewart was approaching. He testified that he saw the appellant, whom he knew, step out and fire at Gloria Stewart three times and then drive off. The appellant took the stand and flatly denied his criminal agency. He stated that he left the American Legion Hall well before midnight and went home to bed.

The Jury Charge

Although for the future, several sentences could well be modified in the light of Mullaney v. Wilbur, the charge as a whole passed constitutional muster. It began:

“Now, in the first count the defendant is charged with assault with intent to murder. The essence or the gist of this offense is the intent to murder, meaning simply, ladies and gentlemen, that if the intent had been carried out and the victim had, in fact, died, the resulting crime would be murder, either murder in the first degree or murder in the second degree. So that in order for there to be a conviction of the crime of assault with intent to murder, the State must show beyond a reasonable doubt that if that had resulted, it would have been at law either murder in the first degree or murder in the second degree.
Since that is so, I must briefly explain to you the crime of murder. Murder is the unlawful killing of a human being with malice aforethought. This malice may be either express or implied. The distinguishing characteristic of murder is this concept of malice aforethought. But, ladies and gentlemen, this is a technical expression, and cannot be taken in the ordinary sense of the word ‘malice’, because as we use it in the law of murder it does not mean necessarily anger or hatred or ill will, but it includes an unlawful or wrongful motive or condition of mind. It means an act done intentionally without legal excuse.” (Emphasis supplied)

To be absolutely correct, of course, malice should be more fully defined as “an act done intentionally without legal justification, excuse or mitigation.” In the full context of the whole instruction and in the factual posture of this case, it is clear that nothing hung on the technical precision of this definition. The charge went on:

“So if you have an act done intentionally without legal excuse, you have malice within the meaning of this law; and that would apply to either murder in the first or second degree, and it is not essential for your consideration that I distinguish those.
The other unlawful homicide in this state would be manslaughter, which does not involve the element of malice. But as I have explained to you, in order for there to be assault with intent to murder, if the victim had died it would have to amount to either murder in the first degree or murder in the second degree. So this simply means this, if the victim in this particular case had died, would it have been murder in the first degree or second degree; and, of course, to determine that you have to determine whether assuming there had been a death, that the killing of the human being was unlawful and was with malice aforethought.”

The important instruction in this case was that dealing with intent. The gist of this instruction was that an intent to do grievous bodily harm will sustain the conviction just as surely as an intent to kill:

“As I have said, that malice can be either express or implied, and ‘malice’ means an act done intentionally and without legal excuse.
By the statement that the malice can be either express or implied, we mean this: It would be express malice if there was an actual intent to cause the death of a person killed, or the death of some other person; whereas, malice would be implied when the act is willfully done, and the natural tendency of that act would be to cause death or grievous bodily harm, or when a deadly weapon is used, particularly when it is directed at a vital part of the body.
So when we speak of doing this unlawful act intentionally, and we speak of express malice, we are talking about the kind of a case where you would find from the evidence that there was an actual intent to cause the death of the person, but it is not necessary that you find that there was a specific intent to cause the death, because implied malice will also suffice for conviction, and ‘implied malice’ means that the act itself is willfully done, and the natural tendency of that act which is willfully done would be to cause death or grievous bodily harm; and, therefore, the aiming or directing a deadly weapon and discharging it when it is directed at a vital part of the body, the malice may be implied by the intentional doing of such an act.
Let me read to you how that has been expressed in perhaps slightly different and probably more articulate words.
A specific intent to murder is not a necessary element for conviction of assault with intent to murder. It is sufficient if there was an intention to commit grievous bodily harm. The essential distinction between murder and manslaughter is the presence or absence of malice, which is the intentional doing of a wrongful act to another without legal excuse or justification.
The inference of malice may be drawn from the fact of the use of a deadly weapon directed to a vital part of the body.”

For two sentences, the instruction then flirts with disaster in a technically inaccurate statement about a presumption of malice. Since the “absence of mitigation” is a given fact, however, it cannot be that aspect of malice to which the presumption refers. Nor will the “intent” element of malice be presumed since the instruction as a whole makes it clear that the State must prove either an intent to kill or an intent to do grievous bodily harm. Nor is the third aspect of malice — the absence of justification or excuse — a remotely material issue in the case. Even though the two sentences that follow do no harm in this case, it is nonetheless clear that they are meaningless words:

“The law presumes that in the absence of mitigation all homicides are committed with malice and constitute murder.
This presumption also applies to cases of assault with intent to commit murder.”

See Evans v. State, Part IIG. The charge goes on:

“If a person deliberately and without ignorance of fact shoots in the direction of another, it will be presumed that he intended to kill him, and he may be convicted of murder, or assault with intent to murder, depending upon the result.”

It would, of course, be preferable and constitutionally safer to say that an intent “may be inferred” rather than “will be presumed.” See Part IIF of Evans v. State. As Chief Judge Orth pointed out in Lindsay v. State, 8 Md. App. 100, 258 A. 2d 760, however, when the Maryland case law uses the word “presumption” in this context, it means merely “presumption of fact” or “inference.” Indeed, the very next sentence uses the better term “inference”:

“Intent to kill and premeditation may be inferred from the intentional use of a deadly weapon in a deadly manner.”

Premeditation, of course, may not be inferred from the use of the deadly weapon alone but that makes no difference to this case, since non-premeditated malice will support the charge as indisputably as will premeditated malice.

A fair reading of the instruction as a whole simply does not place any burden of persuasion upon the appellant nor relieve the State of its burden of proving every element of the crime beyond a reasonable doubt. Mullaney v. Wilbur is not offended.

Even if the instruction failed to pass muster under Mullaney v. Wilbur, however, a reversal would not be called for since the evidence did not remotely generate any issue of justification or excuse, which might render totally non-culpable a resultant homicide, or any issue of mitigation, which might lower a resultant homicide to the manslaughter level and, thereby, fatally erode an assault with intent to murder charge. Evans v. State, Part IF and Part IIH.

Forbidding of Defense Argument on Sentence

The appellant complains that he was denied permission to inform the jury in closing argument of the mandatory five-year sentence, with no possibility of suspension, State ex rel. Sonner v. Shearin, 272 Md. 502, 325 A. 2d 573, on the use-of-a-handgun-in-perpetration-of-a-felony case. He candidly acknowledges that his purpose is “jury nullification” of a statute the jury doesn’t like. We do not read into the jury function as “judge of law as well as fact” any such broad prerogative. The Maryland law in this respect is as we stated in Hamilton and Fletcher v. State, 12 Md. App. 91, 98, 277 A. 2d 460:

“[Article XV, Section 5] contemplates that it is within the proper province of the jury to resolve conflicting interpretations of the law and to decide whether the law should be applied in dubious factual situations. Schanker v. State, 208 Md. 15. It does not confer upon them, however, untrammeled discretion to enact new law or to repeal or ignore clearly existing law as whim, fancy, compassion or malevolence should dictate, even within the limited confines of a single criminal case.”

Legal Sufficiency of Evidence on Handgun Count

The fact that the handgun itself was never recovered and offered in evidence is not fatal to the State’s case. Both Gloria Stewart and Gerald Thomas testified that they saw the appellant fire a pistol. That is legally sufficient evidence to send the case to the jury.

Restriction of Cross-Examination about Prior Record

The court refused to permit the appellant to cross-examine Gloria Stewart about previous convictions for assault. The reasons given by Judge McAuliffe are an eloquent statement of the prevailing law, which statement we approve and adopt:

“Well, those are certainly not infamous crimes, and they are certainly not crimes involving moral turpitude. So the question is whether they are crimes which have some tendency to show that the witness is not to be believed under oath. I don’t think they are.
They may show a pre-disposition toward violence or offers of violence, but that is about it, and that would not be relevant to the determination in this case.
The Court would not permit inquiry as to this witness concerning conviction for these previous offenses.
I would point out that except as to the last assault and battery, you also run into a time problem with the trespass being three years prior to this, and the other assaults running from 1969, of some five, five and a half years ago, so that even if they were crimes having probative value as to credibility of the witness, you would have time problems with regard to some of them; and I just don’t feel that the crime of assault or assault and battery or trespass is such as to indicate a propensity towards lack of credibility; and it has been suggested that we ought not to allow evidence of prior convictions as to defendants at all because the potential prejudicial value is so greatly outweighed by the limited probative value bearing on the issue of credibility. We don’t have that problem because we here have a witness, albeit the complaining witness, but, nonetheless, the crimes don’t even come close to being those which would tend to show this woman has the lack of candor or truthfulness.
About all you could say is anybody who has been in this much trouble is not truthful, they must be a persistent aggravated violator, and that pretty much runs contrary to the reason that we use these prior offenses.
The fact that one has been involved in prior convictions is not evidence of the fact that they are likely to repeat that kind of conduct. But if it was theft or forgery or false pretenses or breaking with the intent to steal, or attempted larceny, any of these types of crimes involving indication of lack of candor, that may be different, but this is not true of assault and assault and battery. There are some very truthful people who love to get in barroom fights, and I don’t think the two of them go together.”

The appellant’s contention in this regard comes, moreover, with ill grace since he, as a witness, received the same consideration when the State was precluded from cross-examining him about his prior criminal record.

Exception to the Hearsay Rule

Willard Washington was permitted to testify that just after three shots were fired and as he and Gerald Thomas were crouching behind an automobile to get out of the line of fire, Thomas stated, “I wonder why Donny Boy shot her again.” The reasons given by Judge McAuliffe for admitting this as an exception to the Hearsay Rule are an excellent and accurate summary of the law in this sometimes troubled field:

“What the spectator said is admissible if at all only by virtue of the fact that it comes so hard on the heels of a starting of an event made without time to deliberate or concoct some story or refine some version or think of motives to say something, gentlemen, that it has sufficient presumed truthfulness and integrity as to be admissible, is more of a spontaneous declaration or excited utterance than what is commonly called res gestae. I think the testimony indicates there was some degree of excitement. It is very difficult at midnight for this man to perceive in such a short period of time the entire state of mind of the other man, but certainly this witness is an intelligent person, and he himself was badly frightened by the incident, obviously, and by his own testimony, both he and the declarant ran, not ran but moved quickly to the rear of the car, crouched down, and immediately thereafter the man got in his car and left, and that is when the statement was made, within seconds or a minute.
Under those circumstances I see absolutely no opportunity to mull over the facts and decide what you are going to say.
The statement certainly has the required element of spontaneity. Certainly the incident is sufficiently extraordinary so as to provoke instantaneous comment, which is more of a knee jerk reaction than of any considered deliberation.
We think, therefore, that the inherent reliability of the statement made under those circumstances is very high, and that really is the test for its admissibility, and there is a sufficient showing of excitement by the declarant and true spontaneity as a result of the exciting incident, so I think it is admissible.”

The hearsay declaration was, moreover, simply cumulative of the testimony of Gerald Thomas, who subsequently took the stand, and of Gloria Stewart.

The Denial of the New Trial Motion

At his hearing on the motion for a new trial, the appellant offered a newly discovered witness, whose proffered testimony would go to impeach Gloria Stewart. This proffered testimony was in part contradicted by two State’s witnesses. Judge McAuliffe ruled that the proffered evidence would not probably produce an acquittal and was not more than merely cumulative or impeaching in character. Jones v. State, 16 Md. App. 472, 298 A. 2d 483; Angell v. Just, 22 Md. App. 43, 321 A. 2d 830. We cannot say that the judge abused his discretion in denying the motion.

Judgments affirmed.


source: Caselaw Access Project

author: Mason, J.,

license: Public Domain

text:
    CHARLES E. WRIGHT v. STATE OF MARYLAND
    [No. 181,
    September Term, 1975.]

      Decided November 26, 1975.

      The cause was argued before Morton, Menchine and Mason, JJ.

      I. Elliott Goldberg, Assigned Public Defender, for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Dana M. Levitz, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The appellant, Charles E. Wright, was convicted by a jury in the Criminal Court of Baltimore for the crimes of manslaughter and violation of the handgun statute. He was sentenced to a term of five years for the manslaughter conviction and a consecutive term of five years for the handgun conviction.

The evidence adduced at trial reveals that on 7 April, 1974, around 11:00 p.m., the appellant and the victim, James L. Bagley, became involved in a heated argument. After exchanging profanities for several minutes, the victim removed his glasses and gave them to a bystander. He then took two steps toward the appellant and reached back into his hip pocket. The appellant in response to the action of the victim, pulled a .38 calibre pistol from his pocket and fired two shots which fatally wounded the victim. No weapon was found on the victim.

According to the appellant, he shot the victim because he thought the victim was reaching into his pocket for a gun. He had seen the victim carrying a gun on several occasions, and he knew the victim had previously shot and killed a man. Several other witnesses.also testified that they had previously seen the victim carrying a gun, and. that the victim had a reputation for being a violent person.

The appellant in seeking a reversal of the judgment below, contends, inter alia, that “the trial court erred in instructing the jury as to the burden of the appellant in a criminal case.”

He assigns as error the following parts of the jury instructions:

“.. . The burden is on the defendant to show circumstances of mitigation, excuse or justification which will reduce the offense to manslaughter or not guilty.”
“The burden of proving self-defense is on the defendant. Although this burden may be fulfilled by a fair preponderance of the credible evidence the defendant need not prove the defense of self-defense beyond a reasonable doubt.”

The objection now raised by the appellant to the jury instruction was not raised below. In fact, the identical parts of the instruction of which the appellant complains were included in his written request of proposed instructions submitted to the lower court.

Ordinarily, the failure to object to an instruction before the jury retires to consider its verdict precludes appellate review. However, this Court may, on its own motion, correct any plain error material to the rights of the accused even though not objected to. Brown v. State, 14 Md. App. 415, 287 A. 2d 62 (1972), Maryland Rule 756 g. We hold the issue here cognizable on appeal because it has threshold constitutional implications and, because there was plain error material to the rights of the appellant in the challenged instruction.

In Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881 (1975), the accused was convicted of murder. The Supreme Court reversed this conviction on the basis that the State of Maine required the accused to prove that he acted in the heat of passion or sudden provocation to reduce the murder to manslaughter. The Court held that the Maine Rule did not comport with the requirement of the Due Process Clause of the Fourteenth Amendment, that the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime charged, including proving beyond a reasonable doubt the absence of the heat of passion or sudden provocation when the issue is properly presented.

Not unlike Maine, it was the settled rule in this State that the accused had the burden of proving he acted in hot blood in order to reduce murder to manslaughter. Chisley v. State, 202 Md. 87 (1953). Thus, the challenged instruction, although a correct statement of the then existing law in this State, is now constitutionally infirm.

In Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), this Court, in a luminous explication of Mullaney by Judge Moylan, held, inter alia, that it is unconstitutional to impose upon a defendant a burden of proving, by any standard, his innocence as to any element of a crime, or to relieve the State of its burden of proving beyond a reasonable doubt any element of the crime charged.

In the present case, the jury was instructed that the burden was on the appellant “to show circumstances of mitigation, excuse or justification which will reduce the offense to manslaughter or not guilty.”

We conclude from the evidence that the question of mitigation, excuse or justification was a jury issue in the case. Therefore, the instruction was an unconstitutional allocation of "the burden of persuasion in violation of the Mullaney mandate. If mitigation were the only jury issue generated in the case, the instruction, although erroneous, would not have resulted in any cognizable harm or prejudice to the appellant because unlike Mullaney, supra, the appellant was convicted of manslaughter and not murder. As we said in Evans, supra, at page 655,

“Where the issue which a defendant has fairly generated is whether sufficient mitigation existed to lower the mens rea to the non-malicious, though still felonious, level of manslaughter, the verdict has cured the error. The defendant has received everything for which he was contending and to which he may arguably have been entitled. He was, to be sure, put to an unfair burden in lowering the conviction to the manslaughter level, but he nonetheless shouldered his burden successfully. The law will not countenance the reversal of a manslaughter conviction, which the defendant agrees he deserved, merely so that upon retrial he may achieve the same end more effortlessly.”

The fatal flaw in the instruction was the erroneous allocation to the appellant of the burden of persuasion on the question of justification or excuse. Not only did this relieve the State of proving beyond a reasonable doubt that the offense was not justified or excused as mandated by Mullaney; it also required the appellant to assume the burden of proving justification and excuse as proscribed by Mullaney.

Heretofore, it was the law in this State that self-defense was an affirmative defense and the Defendant had the burden of persuasion by a preponderance of the evidence. Gunther v. State, 228 Md. 404, 179 A. 2d 880 (1961); Street v. State, 26 Md. App. 336, 338 A. 2d 72 (1975).

Thus, the self-defense instruction, as given, was consistent with the law existing at that time. However, in Evans, supra, we extended the principle laid down in Mullaney and applied it to affirmative defenses, such as self-defense. As a consequence, the instant instruction, which placed the burden of proving self-defense on the appellant by a fair preponderance of the evidence, was unconstitutional. See State v. Grady, 276 Md. 178, 345 A. 2d 436 (1975), where the Court of Appeals held a jury instruction which placed upon the defendant the burden of proving an alibi defense was in violation of the Federal Constitution as well as the Law of Maryland.

Since this case must be reversed, we find it unnecessary to consider the other issues raised by the appellant.

Judgments reversed, case remanded for a new trial.


author: Orth, C. J.,

text:
    MINNIE SUE RYON v. STATE OF MARYLAND
    [No. 376 (On Remand),
    September Term, 1973.]

      Decided November 26, 1975.

      The cause was argued before Orth, C. J., and Davidson and Lowe, JJ.

      Karl G. Feissner, Assigned Public Defender, with whom were Feissner, Garrity, Levan & Schimel and Edward P. Camus, District Public Defender for Prince George’s County, on the brief, for appellant.

      James G. Klair, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Joseph C. Sauenvein, Deputy State’s Attorney for Prince George’s County, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

WONG SUN v. UNITED STATES

On 14 January 1963 the Supreme Court of the United States decided Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407. The Court pronounced the principles to be applied where the issue is whether statements and other evidence obtained after an illegal arrest or search should be excluded. “[F]ederal agents elicited an oral statement from defendant Toy after forcing entry at 6 a.m. into his laundry at the back of which he had his living quarters. The agents had followed Toy down the hall to the bedroom and there had placed him under arrest.* * * * Toy’s statement, which bore upon his participation in the sale of narcotics, led the agents to question another person, Johnny Yee, who actually possessed narcotics. Yee stated that heroin had been brought to him earlier by Toy and another Chinese known to him only as ‘Sea Dog’. Under questioning, Toy said that ‘Sea Dog’ was Wong Sun. Toy led agents to a multifamily dwelling where, he said, Wong Sun lived. Gaining admittance to the building through a bell and buzzer, the agents climbed the stairs and entered the apartment. One went into the back room and brought Wong Sun out in handcuffs. After arraignment, Wong Sun was released on his own recognizance. Several days later, he returned voluntarily to give an unsigned confession. [The Supreme Court] ruled that Toy’s declarations and the contraband taken from Yee were the fruits of the agents’ illegal action and should not have been admitted as evidence against Toy. [371 U. S.] at 484-488, 83 S. Ct. at 416. It held that the statement did not result from ‘an intervening independent act of a free will,’ and that it was not ‘sufficiently an act of free will to purge the primary taint of the unlawful invasion’ Id., at 486, 83 S. Ct. at 416. With respect to Wong Sun’s confession, however, the Court held that in the light of his lawful arraignment and release on his own recognizance, and of his return voluntarily several days later to make the statement, the connection between his unlawful arrest and the statement had ‘become so attenuated as to dissipate the taint. Nardone v. United States, 308 U. S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307.’ Id., at 491, 83 S. Ct. at 419.” The key to the holding in Wong Sun is in this statement by the Court, 371 U. S. at 487-488, 83 S. Ct. at 417:

“ ‘We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).’ ”

The Court in Brown v. Illinois, 95 S. Ct. 2254, 2259-2260 (1975), explained the Wong Sun holding:

“The exclusionary rule thus was applied in Wong Sun primarily to protect Fourth Amendment rights. Protection of the Fifth Amendment right against self-incrimination was not the Court’s paramount concern there. To the extent that the question whether Toy’s statement was voluntary was considered, it was only to judge whether it ‘was sufficiently an act of free will to purge the primary taint of the unlawful invasion.’ 371 U.S. at 486, 83 S. Ct. at 416 (emphasis added).”

The Court in Wong Sun made clear that “verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case is no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion. . . . Nor do the policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence. Either in terms of deterring lawless conduct by federal officers, ... or of closing the doors of the federal courts to any use of evidence unconstitutionally obtained, . . . the danger in relaxing the exclusionary rules in the case of verbal evidence would seem too great to warrant introducing such a distinction.” 371 U. S. at 485-486.

MIRANDA v. ARIZONA

Wong Sun left the basic law relating to admissibility of confessions unchanged. The question upon challenge of a confession was simply whether the statement offered was “voluntary”. In state cases the Supreme Court applied the Due Process Clause of the Fourteenth Amendment, examining the circumstances of interrogation to determine whether the processes were so unfair or unreasonable as to render a subsequent confession involuntary. See, e.g., Haynes v. Washington, 373 U. S. 503 (1963); Payne v. Arkansas, 356 U. S. 560 (1958); White v. Texas, 310 U. S. 530 (1940); Brown v. Mississippi, 297 U. S. 278 (1936). Where the State’s actions offended the standards of fundamental fairness under the Due Process Clause, the State was then deprived of the right to use the resulting confessions in court. This traditional test of voluntariness was the rule of Maryland. “The basic standard governing the admissibility of extra-judicial statement is whether, considering the totality of the circumstances, the statement was voluntary.” Robinson v. State, 3 Md. App. 666, 671 (1968), citing Taylor v. State, 238 Md. 424 (1965) and McFadden v. State, 1 Md. App. 511 (1967).

It was not until the decision of the Supreme Court in Miranda v. Arizona, 384 U. S. 436, decided 13 June 1966, that the privilege against compulsory self-incrimination, a privilege made applicable to the States in Malloy v. Hogan, 378 U. S. 1 (1964), was seen as the principal protection for a person facing police interrogation. The Court in Miranda, for the first time, expressly declared that the Self-Incrimination Clause was applicable to state custodial interrogations, and that an accused’s statements might be excluded at trial despite their voluntary character under traditional principles. Michigan v. Tucker, 94 S. Ct. 2357, 2363 (1974). Miranda established a set of specific protective guidelines, commonly known as the Miranda rules or warnings. In post -Miranda trials, where the State seeks to introduce a statement taken from an accused during custodial interrogation, it must, as part of its proof of voluntariness, affirmatively show that all the Miranda warnings required to be given were in fact given, and that the accused, in giving the statement, understood his rights and knowingly and intelligently waived them.

MICHIGAN v. TUCKER

The Supreme Court decided Michigan v. Tucker, 417 U. S. 433 on 10 June 1974. We know now, in the light of Tucker, that failure to give all the Miranda warnings does not necessarily abridge the privilege against self-incrimination. Tucker tells us, at 444, that the Court in Miranda “recognized that these procedural safeguards were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected. . . . The suggested safeguards were not intended to ‘create a constitutional straitjacket,’ [384 U. S., at 467], but rather to provide practical reinforcement for the right against compulsory self-incrimination.” Thus, evidence obtained without full compliance with the Miranda dictates is not, for that reason, always to be excluded. So, in Tucker, the failure to advise an accused during a custodial interrogation, held prior to the Miranda decision, of his right to appointed counsel, did not in the circumstances existent, infringe against the right against compulsory self-incrimination but only violated the prophylactic rules developed to protect that right. Therefore, the use of the testimony of a witness discovered by the police as a result of the accused’s statements did not violate any requirements under the Fifth, Sixth and Fourteenth Amendments, relating to the adversary system. Prior to Tucker, in Harris v. New York, 401 U. S. 222 (1971), the Court held that a statement of the defendant himself, taken without informing him of his right of access to appointed counsel, could be used to impeach defendant’s direct testimony at trial. Id., at 224.

From Wong Sun through Tucker, the rule appeared to be that verbal evidence is not always to be excluded because it derived from an illegal detention (and thus resulted from an unreasonable search and seizure) or because it was obtained without full observance of the Miranda prophylactic safeguards.* *** It is when the fruits of police misconduct actually infringe upon a defendant’s Fourth and Fifth Amendment rights that they must be suppressed. There were, to be sure, areas which required explication. In Morales v. New York, 396 U. S. 102, 105-106 (1969), the Court said: “In any event, in the absence of a record that squarely and necessarily presents the issue and fully illuminates the factual context in which the question arises, we choose not to grapple with the question of the legality of custodial questioning on less than probable cause for a full-fledged arrest.”

BROWN v. ILLINOIS

Brown v. Illinois, 95 S. Ct. 2254, decided 26 June 1975, was a case lying at the crossroads of the Fourth and Fifth Amendments. The accused was arrested without probable cause and without a warrant. He was given, in full, the Miranda warnings. Thereafter, while in custody, he made two inculpatory statements. It was because of the Court’s concern about the implication of its holding in Wong Sun to the facts in Brown’s case, that it granted certiorari. The opinion of the Court defined the issue thus, at 2256:

“The issue is whether evidence of those statements was properly admitted, or should have been excluded, in petitioner’s subsequent trial for murder in state court. Expressed another way, the issue is whether the statements were to be excluded as the fruit of the illegal arrest, or were admissible because the giving of the Miranda warnings sufficiently attenuated the taint of the arrest.”

The Illinois courts refrained from resolving the question, which the Supreme Court noted was as apt in the case before it as it was in Wong Sun, whether Brown’s statements were obtained by exploitation of the illegality of his arrest. Observing that Wong Sun preceded Miranda, the Court said that the Illinois courts “assumed that the Miranda warnings, by themselves, assured that the statements (verbal acts as contrasted with physical evidence) were of sufficient free will as to purge the primary taint of the unlawful arrest.” 95 S. Ct. at 2260. The Court held that the statements were inadmissible. It emphasized that its holding was a limited one. “We decide only that the Illinois courts were in error in assuming that the Miranda warnings, by themselves, under Wong Sun always purge the taint of an illegal arrest.” Id., at 2262-2263. But what it said in reaching the holding is of the utmost significance.

The Court made clear that “exclusion of a confession made without Miranda warnings might be regarded as necessary to effectuate the Fifth Amendment, but it would not be sufficient fully to protect the Fourth. Miranda warnings, and the exclusion of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation.” Id., at 2260-2261. Even if the statements were found to be voluntary under the Fifth Amendment, the Fourth Amendment issue may remain. “In order for the causal chain, between the illegal arrest and the statements made subsequent thereto to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be ‘sufficiently an act of free will to purge the primary taint.’ * * * Wong Sun thus mandates consideration of a statement’s admissibility in light of the distinct policies and interests of the Fourth Amendment.” Id., at 2261. The Court went on to explain why the exclusionary rule would be substantially diluted if the Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation. It then rejected the per se rule the Illinois courts appeared to have accepted, but also declined to adopt any alternative per se or “but for” rule, id., at 2261:

“The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test.”

It discussed, id., at 2261-2262, what is to be considered in determining the question of admissibility of a statement obtained after an illegal detention, see infra, pointing out that the burden of admissibility rests, of course, on the prosecution.

SUMMARY

The teachings of Wong Sun and Miranda, as explicated in Tucker and Brown, are clear.

1) The Fourth Amendment exclusionary rule applies equally to statements and tangible evidence obtained following an illegal arrest or an otherwise illegal search and seizure.

2) Such statements are not rendered inadmissible simply because of the illegal arrest or unreasonable search and seizure.

3) Such statements are not rendered admissible simply because the Miranda warnings were fully given.

4) Admissibility of such statements, vel non, must be answered on the facts of each case, upon consideration of:

(a) the voluntariness of the statement, which is a threshold requirement;
(b) compliance with the Miranda safeguards, which is important in determining whether the statements were obtained by exploitation of the illegal conduct;
(c) other relevant factors, such as
(i) the temporal proximity of the arrest and the confession;
(ii) the presence of intervening circumstances; and
(iii) “particularly, the purpose and flagrancy of the official misconduct.”

MINNIE SUE RYON vs STATE OF MARYLAND — THE CASE SUB JUDICE

Statement of the Case

On 8 December 1971 the Grand Jury for Prince George’s County returned a seventeen count indictment against Minnie Sue Ryon, Howard Davis Brown, Jr., and Thomas Edward Tennant. The 1st count presented that they feloniously, wilfully and of deliberately premeditated malice aforethought did murder Samuel Garner Ryon (Minnie Sue Ryon’s husband) on 6 November 1971. The 2nd, 3rd and 4th counts alleged respectively that they conspired together to murder Mr. Ryon, to rob him with a deadly weapon, and to commit burglary of his dwelling. The remaining counts charged Brown and Tennant with various crimes against the person and property of Mr. Ryon. On 27 January 1972 the case was removed to the Circuit Court for Harford County for trial. Mrs. Ryon was separately tried. She went to trial before a jury under the 1st count for the murder of her husband, the conspiracy charges being severed. On 13 October 1972, she was convicted of murder in the first degree, and on 20 December 1972 she was committed to the custody of the Commissioner of Correction for the rest of her natural life. This Court affirmed the judgment on direct appeal. Ryon v. State, No. 376, September Term, 1973, filed 11 June 1974, unreported, cert. den., 272 Md. 747 (1974). On 30 June 1975 certiorari was granted by the Supreme Court of the United States. Ryon v. Maryland, 95 S. Ct. 2674. The judgment of the Court of Special Appeals was vacated and the cause remanded to that Court “for further consideration in light of Brown v. Illinois.”

Eleven contentions were raised in the original appeal to us. We found none merited grounds for reversal. We look again at the second contention as it relates to the mandate of the Supreme Court, in disposing of it we said:

“The appellant’s second complaint is that her confession should not have been admitted into evidence. I! She does not. bottom this claim upon Miranda v. Arizona, 384 U. S. 436. It is clear that there was full compliance with the safeguards prescribed by that case. At the hearing on the motion to suppress the confession, the State met its burden of establishing that the statement was freely and voluntarily made. * * * The appellant bases her contention, however, on two other premises. She complains initially that the statement followed an arrest for which no adequate probable cause was shown tl It is firmly established in Maryland that a confession which is otherwise shown to have been voluntary is not rendered inadmissible by the fact that the accused was in custody under an illegal arrest at the time of making the confession. * * * It is furthermore clear that the rule enunciated in Wong Sun v. United States, 371 U. S. 471, does not control prosecutions in the courts of this state. * * * The lawfulness of the arrest is, therefore, a complete irrelevancy.” (citations omitted)

The Facts Surrounding the Confession

We give a compendium of the evidence adduced at the hearing on the motion to suppress the confession. On 12 November 1971, Detective William R. Johnson of the Prince George’s County Police Department appeared before a Maryland District Court Commissioner and subscribed and swore to an application for a warrant to arrest Mrs. Ryon, Brown and Tennant. The application set out as a “concise statement of facts showing probable cause that defendants committed a criminal offense” that they “Conspired and did murder Samuel G. Ryon on or about November 6, 1971. It has been established through two confidential sources who talked with defendant Howard Brown and the confidential sources stated that Howard Brown indicated to them that he along with defendant Thomas Edward Tennant murdered Samuel G. Ryon and were paid to do so by defendant Minnie Sue Ryon.” The formal charge was violation of Code, art. 27, §§ 407, 410 and 38. The Commissioner issued the warrant the same date. It was addressed to “Any law enforcement officer authorized to serve criminal process.” It set out that the sworn application of Johnson alleged that Mrs. Ryon, Brown and Tennant “Did unlawfully and feloniously with premeditation and malice aforethought, murder Samuel Gardner [sic] Ryon.” It formally charged violation of Code, art. 27, §§ 407, 410 and 38. It commanded the law enforcement officer to arrest the persons charged and to bring them before the Commissioner or some other judicial officer as required by law. It warned: “Hereof fail not or have you then and there the warrant.” The warrant was endorsed over the signature of a Judicial Officer as returned on 13 November 1971. It showed that bond was not authorized and set a trial date of 15 November 1971. On the back of the warrant, addressed “TO THE PERSON ARRESTED”, there were set out certain rights of an arrestee:

“You do not have to say anything to anyone about any charge which has been placed against you, and anything you do say may be used against you in court.
You have the right to consult with a lawyer before the police start questioning you and to have a lawyer present while the police are questioning you. If the police are questioning you and a lawyer is not present, you may have the questioning stopped so that you may talk to a lawyer. You also have the right to consult with your family or friends. If you are being questioned or held and you want to talk to your family or friends or to a lawyer, you will be allowed to use a telephone, if necessary.
If you want a lawyer but cannot afford to pay for one, you may have the right to have one assigned to represent you free of charge, if the crimes with which you are charged are serious enough. A judge or a District Court commissioner or the Public Defender’s Office can tell you whether you are eligible for a court-assigned lawyer.
If you decide to give a statement, you still have the right to stop at any time so you may talk to a lawyer.”

Each of Mrs. Ryon, Brown and Tennant signed the warrant as having read or having had read “to me the contents of the aforegoing document” and acknowledging receipt of a copy thereof. Detective Johnson certified over his signature that at 0245 hours on 13 November 1971 he had executed “the above warrant by arresting the defendant or personally delivering to him and leaving with him a copy of the warrant.” The back of the warrant also contained the “Statement and Certification of Initial Appearance before Judicial Officer.” The Judicial Officer certified that the initial appearance of the arrestees before him was on 13 November 1971 at 1:50 a.m., that he determined that the defendants were provided with a copy of the charging document and informed them of each offense charged, of the rights set out in the warrant, of the right to consult counsel and to contact family and friends, and that no statement need be made, but if one is made, it may be used against the maker in a court of law. See Maryland District Rule 706.

The homicide was investigated by Johnson and his superior officer, Lieutenant Detective James Fitzpatrick. It was stipulated:

“1. That the Defendant, Minnie Sue Ryon, was arrested at approximately 8:45 P.M. on November 12,1971.
2. That she was taken to the Seat Pleasant Police Pleadquarters promptly and arrived there 15-20 minutes later.
3. That Mrs. Ryon was questioned by several officers and was taken before the Magistrate of her initial appearance at about 4 A.M. on November 13, 1971.
4. That from the time Mrs. Ryon arrived at Seat Pleasant until she was taken before the Magistrate the next morning, there were present there on duty two (2) judicial officers between the hours of 4:00 P.M. and 12:00 Midnight and one (1) judicial officer between the hours of 12:00 Midnight and 8:00 A.M.
5. The judicial officers who were there were authorized to perform all acts within the scope of their office, including hearing the initial appearance for an arrested defendant as required by Maryland Rules.
6. That at the time the Defendant was brought to police headquarters she had to walk past the office of the judicial officer to reach the detention room where she was questioned.
7. That about 4:00 P.M. November 12, 1971, a warrant was issued by a judicial officer for the arrest of Mrs. Ryon.”

The testimony of Johnson and Fitzpatrick tended to show that they arrested Mrs. Ryon about 9:15 p.m. on 12 November 1971. They were aware that a warrant for her arrest had been issued and that it was required that she be brought before a judicial officer without unnecessary delay. The warrant was not served on her when they first took her into custody. She was told that they were taking her to view some suspects. Johnson explained that one of the reasons she was told this was so she would be off-guard and another reason was that the officers did not want to embarrass her unduly. It was also felt that it would be easier to question her at the police station rather than to tell her what it was about at the time they arrested her. At Seat Pleasant she was told she was charged with murder. She was given the full Miranda warnings about 9:35 p.m. She gave both an oral and written statement. The taking of the written statement began about 10:00 p.m. and was concluded about 3:45 a.m. the next day. During the questioning she was calm, rational and “in control.” She appeared to Johnson to be a reasonably intelligent person. There was no promises made or inducements held out for her to make a statement. She was not given a copy of the warrant until she went before the Judicial Officer.

Dr.' Francis Carney, a full-time clinical psychologist at Patuxent Institution and a consultant to the Spring Grove State Hospital, testified in behalf of Ryon. He administered the Wechsler Adult Intelligence Scale and the Bender Gestalt and the Rorschach tests to her. These tests are to ascertain personality characteristics of an individual for the purpose of determining competency relating to criminal responsibility and sanity. On the tests, Mrs. Ryon had a verbal I.Q. of 60, and a performance I.Q. of 78, and a full scale I.Q. of 65. An individual with a full scale I.Q. of 65 is in the range of mild mental retardation. An individual who has mild mental retardation is a person who has difficulty in learning complex tasks, but is one who could learn simple kinds of tasks. Such individual is able to communicate in simple language, but complex or abstract thoughts will tend to be very difficult.

Mrs. Ryon, who claimed she had a ninth grade education, gave her version of the circumstances surrounding her confession. She was taken into custody on 12 November 1971 by police officers who told her they wanted her to identify two men. They did not tell her they had a warrant for her arrest. Prior to the questioning of her the officers told her that if she helped them, they would help her. It was her understanding that she would not be prosecuted. She signed a statement before her initial appearance before the Judicial Officer upon being told that if she did not sign “they could slip any kind of paper in between the papers.” She had never been arrested before and her rights were not explained to her. Certain things in the statement were not the truth, and she did not use language like that in the statement.

Johnson was recalled and stated that Mrs. Ryon was made no promises. He denied that he told her he would make it easy for her. Fitzpatrick was recalled and denied that any promises were made to Mrs. Ryon. Following argument, the court denied the motion to suppress, finding that the confession was freely and voluntarily given without any inducement.

Application of the Law to the Facts

The arrest warrant was invalid because it lacked sufficient probable cause for its issuance. Any showing of probable cause must be gleaned from the statement in the application supporting the conclusion that Mrs. Ryon, Brown and Tennant conspired and murdered Mr. Ryon:

“It [the conspiracy and murder] has been established through two confidential sources who talked with defendant Howard Brown and the confidential sources stated that Howard Brown indicated to them that he along with defendant Thomas Edward Tennant murdered Samuel G. Ryon and were paid to do so by defendant Minnie Sue Ryon.”

This may have satisfied the “basis of knowledge” prong of Aguilar v. Texas, 378 U.S. 108 (1964), but it was clearly wanting with respect to the “veracity” prong. See Stanley v. State, 19 Md. App. 507 (1974), cert. den., 271 Md. 745. See also Hearsay and Probable Causer An Aguilar and Spinelli Primer; by Judge Moylan of this Court, 25 Mercer L. Rev. 741 (1974). The State suggests that the “veracity” prong was satisfied upon an assumption that the confidential informants were not from the criminal milieu. See King and Mobley v. State, 16 Md. App. 546, 555 (1973), affirmed, Mobley and King v. State, 270 Md. 76 (1973); Dawson v. State, 14 Md. App. 18, 33 (1971). There is nothing, however, to show that the confidential source of the information here was not from the criminal milieu. If this was so, it was for the State to so show, and this it did not do. The arrest of Mrs. Ryon could not be justified by the warrant commanding it.

On the record before us, we are unable to find that the officer had probable cause for a warrantless arrest of Mrs. Ryon.

At the hearing bn the motion to suppress, Fitzpatrick testified: “We had learned — or we had received information earlier that date, the 12th of November, from confidential sources that indicated the defendant, along with two other co-defendants, were responsible for the homicide and warrants were obtained based on that information.” He explained what he meant by “being responsible”: “Information had been received from a confidential source who had been with co-defendant, Thomas Tennant and co-defendant, Harold Brown, when they discussed that on the night of November the 6th they entered the Ryon home, located at 1305 Ritchie Highway, and in fact had murdered Mr. Ryon in an agreement with Mrs. Ryon for his money.” Of course, as we said in Stanley, at 510-511:

“. . . the guidelines for the evaluation of hearsay information in a probable cause setting are the same whether a magistrate is contemplating the issuance of a warrant or whether a trial judge is weighing the propriety of a policeman’s actions without a warrant.”

See Nadolski v. State, 1 Md. App. 304, 308 (1967):

We observed in Cleveland v. State, 8 Md. App. 204, 218 (1969):

“The general rule is that a warrantless arrest by a police officer is valid where he has probable cause to believe at the time of the arrest that a felony has been committed and that the person arrested committed it. * * * Probable cause exists in this context when the facts and circumstances within the knowledge of the arresting officer, or of which he had reasonably trustworthy information, are sufficient to warrant a reasonably cautious person in believing that a felony had been committed by the person arrested. * * * (citations omitted).

The same deficiency existed in the probable cause for a warrantless arrest as existed in the probable cause set out in the warrant. We hold that the arrest of Mrs. Ryon was illegal.

As we understand it, Mrs. Ryon’s contention on appeal regarding the admissibility of her confession was not bottomed on any violation of the Miranda dictates. Therefore, the instant case has the same basic factual posture as did Brown. After the warnings prescribed by Miranda were given, a confession was obtained from an accused duing an interrogation by the police while the accused was in custody as a result of an illegal arrest. As we have seen, Brown taught us that in state prosecutions a confession may be the fruit of an illegal arrest and that the giving of the Miranda warnings does not always purge the taint ot such arrest. Under the mandate of the Supreme Court, the issue for decision on the appeal before us is whether, applying the rationale of the Brown holding to the facts and circumstances surrounding the obtaining of the confession from Mrs. Ryon, the confession was properly admissible or should have been excluded as the fruit of the illegal arrest. Concisely stated, the issue is whether Mrs. Ryon’s statement was obtained by exploitation of the illegality of her arrest.

We start with the proposition that the burden of establishing admissibility rests on the State. We conclude that even if the statement were voluntary under the Fifth Amendment by the giving of the Miranda warnings, the State failed to sustain its burden of showing that it was admissible in light of the distinct policies and interests of the Fourth Amendment as explicated in Wong Sun. That is, it was not sufficiently an act of free will to purge the primary taint of the illegal arrest as Wong Sun requires. 371 U. S. at 486. We reach this conclusion upon application of the relevant factors set out in Brown.

The Temporal Proximity of the Arrest and the Confession

Mrs. Ryon was taken to the police station by the arresting officers promptly upon being arrested, arriving there 15 to 20 minutes later. It appeared that the questioning of her began immediately and that the written statement she gave was the product of that interrogation. There was testimony at the hearing on the motion that the taking of the written statement began at 10:00 p.m., following the oral statement, and concluded about 3:45 a.m. the next morning. Thus, there was no appreciable time between the arrest and the oral statement, and the written statement was separated from the illegal arrest only by several hours. Essentially, in this respect, Mrs. Ryon’s situation was remarkably like that of Toy in Wong Sun and Brown in his case.

The Presence of Intervening Circumstances

There was no intervening event here of any significance whatsoever. It was only after the statements were obtained from Mrs. Ryon that she was taken before the Judicial Officer and given a copy of the warrant commanding her arrest. Nothing occurred to so attenuate the connection between the illegal arrest and the statement as to dissipate the taint.

The Purpose and Flagrancy of the Official Misconduct

Even if the arresting officers here truly thought that they had valid authority to 'arrest Mrs. Ryon under the warrant, the arrest was not without impropriety. “Promptly after his arrest the defendant shall be given a copy of the warrant by the arresting officer.” M.D.R. 706, § d. “An officer executing a warrant shall make prompt return thereof to the issuing officer or such other judicial officer as the warrant directs.” M.D.R. 706, § f 2. The reasons for the non-compliance, more than the non-compliance itself, are significant in the instant case. Little weight should be given to the assertion that the officers did not want to embarrass Mrs. Ryon. They could have apprised her of the actual situation as soon as she was out of the presence of her friends and given her a copy of the warrant at that time. It is meaningful that they told her they were taking her to the police station to view some suspects, which was certainly not so. Even more determinative is the officers’ admission that they told her this so that she would be off-guard. Significant also is the testimony that they felt it would be easier to question her at the police station rather than tell her what it was about at the time they arrested her. All of this, coupled with the fact that they did not take her before a judicial officer or give her a copy of the arrest warrant until after she confessed, compels the belief that the officers thought that a confession was essential to their case, and to that extent, at least, the arrest at that time was investigatory. The circumstances of the arrest give the appearance of having been calculated to cause surprise, fright and confusion to the end that an inculpatory statement would be made.

Decision

On our independent constitutional appraisal of the record, we think that the causal connection between the illegality of the arrest and the confession was not broken. Rather, the confession was obtained by exploitation of the illegality. The confession was to be excluded as the fruit of the illegal arrest. We find that the State failed in its burden of showing that the confession was admissible under Wong Sun. In the light of Brown v. Illinois, supra, we hold that the trial court erred in denying the motion to suppress.

Judgment reversed; case remanded for anew trial.

      . The United States Court of Appeals found, and the Supreme Court agreed, that there was no probable cause for Toy’s arrest.

      . This summary of the facts and holdings in Wong Sun is as set out in Brown v. Illinois, 95 S. Ct. 2254, 2259 (1975).

      . We said in Robinson at 670-671:
      “It is well settled that in order for a confession to be admissible into evidence against an accused, the State must prove that it was voluntary and not the product of force, threats, promises or inducements. Abbott v. State, 231 Md. 462; Cooper v. State, 1 Md. App. 190. Otherwise stated, to be voluntary, a statement cannot be ‘extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.’ Malloy v. Hogan, 378 U. S. 1, 7; Lyter v. State, 2 Md. App. 654.”
      Koprivich v. State, 1 Md. App. 147, 151 (1967), we put it this way, citing Hadder v. State, 238 Md. 341 (1965); Wiggins v. State, 235 Md. 97 (1964); Bryant v. State, 229 Md. 531 (1962):
      “[T]he test by which the court is to measure the admissibility of an extrajudicial statement (or confession) is whether the statement was made freely and voluntarily and at a time when the accused knew and understood what she was saying.”

      . The Court explained, in Harris, at 224:
      “Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.”

      . The Court said in Tucker, at 446:
      “Just as the law does not require that a defendant receive a perfect trial, only a fair one, it cannot realistically require that policemen investigating serious crimes make no errors whatsoever.”

      . The Court noted, 396 U. S. at 105: “Given an opportunity to develop in an evidentiary hearing the circumstances leading to the detention of Morales and his confessions, the State may be able to show that there was probable cause for an arrest or that Morales’ confrontation with the police was voluntarily undertaken by him or that the confessions were not the product of illegal detention.”

      . The opinion of the Court was delivered by Mr. Justice Blackmun. Mr. Justice White concurred in the judgment and filed an opinion. Mr. Justice Powell concurred in part and filed an opinion in which Mr. Justice Rehnquist joined.

      . The Court referred to Wong Sun and noted that the Fourth Amendment had been held to be applicable to the states through the Fourteenth Amendment, citing Mapp v. Ohio, 367 U. S. 643 (1961).

      . The Court’s approach was characterized by it as one which “relies heavily, but not excessively, on the ‘learning, good sense, fairness and courage of federal trial judges.’ ” Id., n. 10, at 2262. We assume that the Court recognizes these traits in state judges also.
      The Court found that the record before it was sufficient to ascertain that the State failed to sustain its burden of showing that the evidence was admissible under Wong Sun, id., at 2262:
      “Brown’s first statement was separated from his illegal arrest by less than two hours, and there was no intervening event of significance whatsoever. In its essentials, his situation is remarkably like that of James Wah Toy in Wong Sun. We could hold Brown’s first statement admissible only if we overrule Wong Sun. We decline to do so. And the second statement was clearly the result and the fruit of the first.
      The illegality here, moreover, had a quality of purposefulness. The impropriety of the arrest was obvious; awareness of that fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their testimony, that the purpose of their action was ‘for investigation’ or for ‘questioning.’ The arrest,_ both in design and in execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up. The manner in which Brown’s arrest was effected gives the appearance of having been calculated to cause surprise, fright, and confusion.” (footnotes and references omitted).

      . On 11 December 1972 the case as to Tennant was removed for trial to the Circuit Court for St. Mary’s County. The final disposition of it does not appear in the record before us.
      Brown was twice tried. At the first trial the jury could not agree upon a verdict, and the court declared a mistrial on 18 November 1972. Upon retrial, the jury found him guilty on 27 July 1973 of murder in the first degree.

      . Mrs. Ryon’s pretrial motion to suppress any confession or admission made by her was denied upon a plenary hearing before the trial on the merits. At the guilt stage of the trial, the State adduced evidence as to the voluntary nature of a confession obtained from Mrs. Ryon and it was admitted over objection. See Barnhart v. State. 5 Md. App. 222 (1968).

      . The second basis for the inadmissibility of the confession was that it should have been excluded because it was obtained “during a period of detention in violation of the Maryland and District Court Rules of Procedure.” She attempted to analogize Maryland District Rule 709 to the rule of Mallory v. United States, 354 U. S. 449 (1957). We found that Rule 709 had not been offended.

      . The Court of Appeals of Maryland appeared to have dissociated itself promptly from Wong Sun. In a long line of cases, starting with Prescoe v. State, 231 Md. 486, decided 24 May 1963, a majority of the Court indicated that Wong Sun was not intended to, and did not, control prosecution in state courts. Further, it did not consider a confession or admission to be the “fruit” of a search and seizure because it was not tangible evidence. See Stewart v. State, 232 Md. 318 (1963); Peal v. State, 232 Md. 329 (1963); Dailey v. State, 234 Md. 325 (1964), cert. den. 379 U. S. 975 and 384 U. S. 913; Bean v. State, 234 Md. 432 (1964); Mefford and Blackburn v. State, 235 Md. 497 (1964), cert. den., 380 U. S. 937; Walker v. State, 237 Md. 516 (1965), cert. den., 368 U. S. 960; McChan v. State, 238 Md. 149 (1965) vacated and remanded, 384 U. S. 893, cert. den., 384 U. S. 1021; Streams v. State, 238 Md. 278 (1965); Taylor v. State, 238 Md. 424 (1965); Dailey v. State, 239 Md. 596 (1965), cert. den., 384 U. S. 913; Crowe and Williston v. State, 240 Md. 144 (1965).
      We, of course, followed those views. See, Nadolski v. State, 1 Md. App. 304 (1967), cert. den., 247 Md. 741, 389 U. S. 1023; Howard v. State, 1 Md. App. 379 (1967); Stackhouse v. State, 1 Md. App. 399 (1967); Fisher v. State, 1 Md. App. 505 (1967); Boone v. State, 2 Md. App. 80 (1967); State v. Hill, 2 Md. App. 594 (1967); Tender v. State, 2 Md. App. 692 (1968); Speaks v. State, 3 Md. App. 371 (1968); Veihmeyer v. State, 3 Md. App. 702 (1968); Ervin v. State, 4 Md. App. 42 (1968), cert. den., 251 Md. 748; Butina v. State, 4 Md. App. 312 (1968), cert. den., 251 Md. 748; Jones v. State, 5 Md. App. 489 (1968); McDonald v. State, 10 Md. App. 258 (1970), cert. den., 260 Md. 721; Mulligan v. State, 10 Md. App. 429 (1970); Wilkins v. State, 16 Md. App. 587 (1973), affirmed, 270 Md. 62, cert. den., 415 U. S. 992.
      In Carter v. State, 274 Md. 411, decided 11 April 1975, a unanimous Court of Appeals manifested some doubt as to its prior holdings. It noted, n. 9, at 431-432:
      “In the light of the holdings in Miranda v. Arizona, 384 U. S. 436 (1966), Davis v. Mississippi, 394 U. S. 721, 724 (1969), pointing out that there is no distinction under the Fourth Amendment between tangible and intangible evidence obtained after an illegal arrest, and in Michigan v. Tucker, 417 U. S. 433, 445 (1974), indicating that the statements of the defendant, as the 'fruits’ of police conduct are within the defendant’s Fourth Amendment rights, we must leave for another time the question of the continuing viability of our holdings in Prescoe v. State, supra, and its progeny.”
      The time swiftly came. In Everhart v. State, 274 Md. 459, decided three days after Carter, the Court characterized its statements with regard to the application of Wong Sun in state prosecutions as “dicta”. Id., n. 4, at 479-480. It declared that “such statements would now appear to have been erroneously gratuitous observations.” We emphasize, as we indicated supra, that in Morales v. New York, 396 U. S. 102 (1969) the Supreme Court indicated that certainly all questions relating to detention and questioning had not yet been determined. See McDonald v. State, supra; Mulligan v. State, supra.

      Whether statements of the Court of Appeals concerning the application of Wong Sun were erroneously gratuitous observations or not, the cases above cited manifest that the appellate courts of this State, adhered to a rule as to the admissibility of confessions which was not materially different from that followed in Brown v. Illinois, supra. The rule, although variously stated in the cases, is substantially that set out in Taylor v. State, 238 Md., at 429:
      “We have repeatedly held that the admissibility, vel non of a confession is to be determined by whether, under the totality of the attendant circumstances, the confession was freely and voluntarily given. If freely and voluntarily given, it is admissible; if not, it is inadmissible. And neither the legality nor illegality of the arrest, although properly considered in the totality of the circumstances, is critical in a determination of the voluntariness of a confession.”

      . After the signature of Tennant the time was given as 1:45 a.m.

      . Fitzpatrick testified that Tennant, the first arrested, was taken into custody about 6:00 p.m. on 12 November 1971. Fitzpatrick at that time had the arrest warrant. Brown was arrested about 6:30 p.m.

      . Our compendium is, in material part, the version of the evidence adduced at the hearing given by Mrs. Ryon in the Statement of Facts in her brief on the original appeal. The Statement was “adopted in essence” by the State, and, we think, fairly reflects what appears in the transcript of the proceeding.

      . The Court in Brown did not define the retroactive application of the holding. It is manifest, however, from the mandate to us, that Brown applies at the least to cases not finally litigated at the time the decision was rendered. We said in Greene v. State, 11 Md. App. 106, n. 1, at 111 (1971), that a case is finally litigated when the time for direct appeal expires without an appeal having been taken, or if an appeal has been made, the date on which certiorari was denied by the Supreme Court of the United States, or the time to apply for certiorari has expired without application having been made.

      . According to the stipulation received in evidence, Mrs. Ryon was arrested at approximately 8:45 p.m. Fitzpatrick testified she was arrested at 9:15 p.m.

      . The exact time of Mrs. Ryon’s initial appearance before the judicial officer is not clear. According to the stipulation it was 4:00 a.m. on 13 November 1971. The judicial officer certified on the warrant that the initial appearance of the “defendant” was at 1:50 a.m. The certification does not show whether this referred to the initial appearance of any one of the persons arrested or all of them. Johnson certified on the warrant that he executed it “by arresting the defendant or personally delivering to him and leaving with him a copy of the warrant” at 0245 hours on 13 November 1971. Whether this included Mrs. Ryon is not known. Under Tennant’s signature acknowledging receipt of the warrant, 1:45 a.m. is set out.

      . “A warrant shall be executed by the arrest of the defendant.” M.D.R. 706, § f 1.


author: Moylan, J.,

text:
    ROBERT NEWBORN v. STATE OF MARYLAND
    [No. 249,
    September Term, 1975.]

      Decided November 28, 1975.

      The cause was argued before Moylan, Powers and Lowe, JJ.

      William H. Murphy, Jr., for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Sivisher, State's Attorney for Baltimore City, Dana M. Levitz and Robert Lynott, Assistant State’s Attorneys for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

In yet another variation of the arguable impact of Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), this case raises the question of the method by which a fair jury question is generated. The appellant, Robert Newborn, was convicted in the Criminal Court of Baltimore by a jury, presided over by Judge David Ross, of murder in the second degree. He does not question the legal sufficiency of the evidence to establish his guilt. He contends rather:

1) that an erroneous jury instruction, in the light of Mullaney v. Wilbur, was given, unconstitutionally imposing upon him the burden of showing such mitigation as would reduce the crime from murder to manslaughter;

2) that oral statements given by him, visual observations made of him and a physical examination of his hands were all unconstitutionally obtained fruits of the poisonous tree under Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963), and Brown v. Illinois, 421 U. S. 590, 95 S. Ct. 2254, 45 L.Ed.2d 416 (1975); and

3) that the trial judge erroneously refused to permit him to reopen his case for purposes of attempting to obtain the presence and testimony of an additional defense witness.

The Mullaney v. Wilbur Problem

There is no question but that the jury instruction dealing with the presumption of malice and placing the burden upon the appellant to negate malice was academically incorrect in the light of Mullaney v. Wilbur, as analyzed and explained in terms of its effect upon Maryland law in Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975). The initial instruction to the jury wTas, in pertinent part:

“Malice is the intentional doing of a wrongful act to another without legal excuse or justification. It includes any wrongful acts done wilfully and purposely. In the absence of justification, excuse, or some circumstance of mitigation the law presumes all homicides, that is all killings of other human beings, to be committed with malice and to constitute murder in the second degree. [] The burden is on the State to prove the element of deliberation and premeditation, which would elevate the offense to murder in the second degree. And the burden is on the Defendant to show some circumstance of mitigation, excuse, or justification which would reduce the offense to manslaughter or not guilty.” (Emphasis supplied)

Following a brief bench conference and just before the jury retired to deliberate, the following reinstruction was given:

“Members of the jury, counsel have suggested that I inadvertently misread or misstated a portion of the instructions. So that there will be no doubt or question about it, I will reread to you that portion. It is as follows: In the absence of justification, excuse or some circumstance of mitigation, the law presumes all homicides to be committed with malice and to constitute murder in the second degree. The burden is on the State to prove the elements of deliberation and premeditation which would raise the homicide to murder in the first degree. The burden is on the Defendant to show circumstances of mitigation, excuse or justification u'hich will reduce the offense to manslaughter or not guilty.” (Emphasis supplied)

As we analyzed fully in Part IIG of Evans, such an instruction, purporting to place a burden upon the defendant to prove such justification or excuse as would relieve him of guilt or such mitigation as would lower his degree of guilt is unconstitutional under Mullaney v. Wilbur. Such an instruction, given in circumstances where it might have operational effect, would relieve the State of its responsibility of proving every element of a crime beyond a reasonable doubt, thereby offending the Due Process Clause as interpreted by In re Winship, 397 U. S. 358, 364, 90 S. Ct. 1068, 25 L.Ed.2d 368, 375 (1970), the predicate case on which Mullaney v. Wilbur rested.

As we further pointed out in Evans (Part IF and Part IIH), however, even an erroneous instruction is immaterial unless it deals with an issue fairly generated in the case. Brown v. State, 29 Md. App. 1, 349 A. 2d 359 (1975), and Burko v. State, 28 Md. App. 732, 343 A. 2d 251 (1975).

In the present case, the evidence revealed that Harriett Watkins, an elderly woman who had been the girlfriend of the appellant, was found dead at 7 a.m. on February 1, 1974, by a city trash collector in the rear of 1818 W. Mulberry Street in Baltimore. Through a number of witnesses, whose testimony need not be here detailed, a legally sufficient web of guilt was woven about the appellant. Nothing in the State’s case served to generate any legitimate question of justification, excuse or mitigation. The appellant took the stand and flatly denied his homicidal agency. None of the evidence, from either the State or the defense, served to generate a fair jury question on any of the issues of justification, excuse or mitigation.

In argument before us, appellant’s counsel candidly acknowledges as much. He seeks, however, innovatively to establish that the issue at least of such mitigation as would lower the level of guilt to manslaughter was generated by the opening statement and closing argument of the Assistant State’s Attorney. In opening statement, the Assistant State’s Attorney told the jury about the presumption that unlawful killing is murder in the second degree in essentially the same terms as the judge did later in his jury instructions. The Assistant State’s Attorney also said to the jury, “The second issue for you to decide and probably one that is going to cause you a little bit more problems, and I will tell you now, is what crime was committed?” In closing argument, the Assistant State’s Attorney returned to the same theme, “The second issue is the one I said you are going to have a little bit more problems with. And that is, what was the crime that was committed?”

We simply cannot buy the appellant’s argument that a gratuitous reference to manslaughter, unsupported by any evidence, made by the prosecutor has any more significance than a gratuitous reference in that regard made by the judge. Based upon our reading of both Mullaney v. Wilbur and the general state of the underlying law, both in Maryland and throughout the common law world, we indicated in Evanx (Part IIH) that a fair jury question can only be generated by evidence and not by pleadings, courtroom allegations or arguments unsupported by evidence. We there said:

“We are persuaded that nothing in Mullaney v. Wilbur adversely affects in any way the status of presumptions in this limited function of requiring that there be produced sufficient evidence to generate a jury issue. The holding of Mullaney v. Wilbur was very careful to add a qualifying clause, at 44 L.Ed.2d 522:
‘We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.' (Emphasis supplied)
Mullaney v. Wilbur went on very explicitly, at 44 L.Ed.2d 521, n. 28:
‘Many States do require the defendant to show that there is “some evidence” indicating that he acted in the heat of passion before requiring the prosecution to negate this element by proving the absence of passion beyond a reasonable doubt. . . Nothing in this opinion is intended to affect that requirement.’ (Emphasis supplied)
Mullaney v. Wilbur went on, at 522, n. 31, to explain that constitutionally proper presumptions simply shift to a defendant the burden of producing evidence (or of relying, at his risk, upon the evidence produced by the State) and not the burden of ultimate persuasion . . .” (Emphasis supplied)

In Evans, we quoted with approval from LaFave and Scott, Criminal Law (1972), at 47:

“As to the burden of production of evidence, it is uniformly held that the defendant is obliged to start matters off by putting in some evidence in support of his defense e.g., evidence of his insanity, or of his acting in self-defense, or of one of the other affirmative defenses — unless of course the prosecution, in presenting its own side of the case, puts in some evidence of a defense, in which case the matter of defense is properly an issue though the defendant himself produces nothing further to support it.” (Emphasis supplied)

To generate a fair jury question on a number of issues, the law of Maryland has always required the production of evidence. Bateman v. State, 10 Md. App. 630, 272 A. 2d 64; Mock v. State, 2 Md. App. 771, 237 A. 2d 811 (requiring that evidence of intoxication be produced to generate a jury question in that regard); Bremer v. State, 18 Md. App. 291, 315-316, 307 A. 2d 503; Dennis v. State, 13 Md. App. 564, 569, 284 A. 2d 256; Strawderman v. State, 4 Md. App. 689, 698, 244 A. 2d 888 (requiring that evidence of insanity be produced to generate a jury question in that regard); Street v. State, 26 Md. App. 336, 338-341, 338 A. 2d 72 (requiring that evidence of self-defense be produced to generate a jury question in that regard); and Fisher v. State, 28 Md. App. 243, 345 A. 2d 110 (requiring that evidence of entrapment be produced to generate a jury question in that regard).

Throughout Part IF and Part IIH of Evans, the parts of that opinion here pertinent, we spoke consistently of the requirement that a legitimate jury issue be generated by evidence bearing on that issue. We there said, in Part IIH:

“A presumption in the Thayer-Wigmore tradition simply places upon a defendant the onus of producing evidence, or of relying at his risk upon evidence produced by the State, sufficient to generate a jury issue with respect to a particular defense. Once the issue is generated by evidence, the presumption totally dissipates (the bubble bursts) and the State assumes the burden of persuasion on that issue beyond a reasonable doubt. ... If the issue has not been generated by evidence, the jury never receives the issue.” (Emphasis supplied)

In the instant case, there was simply no evidence whatsoever generating a jury issue with respect to justification, excuse or, mitigation. The jury instruction, therefore, although academically incorrect, was palpably harmless.

The Brown it. Illinois Question

The appellant also exercises a constitutional imagination at the appellate level of which he did not avail himself at the trial level. He looks to an oral statement, to certain visual observations made of his body and to a blood test made on his hands — all of which occurred while he was in police custody at sometime shortly after 12:30 p.m. on February 1, 1974. He now claims, for the first time, that these were consequences of an unlawful arrest which occurred several hours earlier. He now claims, under Wong Sun v. United States, supra, that the oral statement, the observations and the blood test were fruits of the poisonous tree — exploitations of that primary illegality. He particularly seeks succor in Brown v. Illinois, supra.

We note initially that at his trial, the appellant made no objection to any of the three items now in question upon the theory that they were the unconstitutionally. tainted products of an initially bad arrest. Maryland Rule 1085 is enough to foreclose further review.

We note, further, however, that in this case, unlike Brown v. Illinois and unlike Ryon v. State, 29 Md. App. 62, 349 A. 2d 393, in which Chief Judge Orth thoroughly analyzed the effect of Brown v. Illinois, no unlawful arrest was established. Although the indifference of the appellant effectively precluded a square ruling on the legality of the arrest, every indication from the record tends to support the conclusion that it was perfectly lawful. Detective Howard Corbin, a twelve-year veteran of the Homicide Squad, responded to the crime scene and examined the body of the victim at approximately 7:30. a.m. on the morning of February 1. He spoke to Glenda Black, the victim’s daughter; to Lena Rita Finch, a neighbor who knew the victim; and to James Edwards, another resident of the neighborhood where the crime occurred. He took all three of these witnesses with him to the Western District Police Station where he spent the remainder of the morning interrogating them and taking affidavits from them.

Although Detective Corbin did not testify as to the information he received from these witnesses at the in-trial suppression hearing on the oral statement (for the very good reason that the legality of the appellant’s arrest was not being contested and that probable cause for that arrest was, therefore, not in issue), a brief summary of their testimony at the trial gives rise to a fair inference of what Detective Corbin learned during several hours of reducing to affidavit form the information of the witnesses. At the trial, no spectre was raised of any prior inconsistent statements.

Glenda Black, the victim’s daughter, testified as to the boyfriend-girlfriend relationship between the appellant and the victim. She had seen her mother and the appellant together, drinking, the night before her mother’s body was found. At 7:30 p.m. that evening, the appellant and the victim were observed “fussing” over the appellant’s having taken the victim’s pocketbook. That was the last occasion when Glenda Black saw her mother alive.

Mrs. Finch testified that the victim sometimes lived with her “as a friend of the family.” She observed the appellant and the victim arguing with each other at approximately 8 p.m. on the evening when the crime occurred. She observed the appellant strike the victim in the face with his hand. She observed the appellant pull a knife and threaten to stab the victim in the heart if any neighbors interfered with the argument that he was then having with her.

James Edwards heard the appellant arguing with the victim at approximately 11 p.m. on the evening that the crime occurred. He observed that “they was drinking right much.” He had seen them earlier that evening arguing about the victim’s pocketbook. He heard one of the two parties to the quarrel say, “I’ll kill you,” and he offered the opinion that “it sounded mostly like Mr. Robert’s voice.”

Detective Corbin did indicate in his testimony that after leaving the crime scene, he went to the home of the appellant but did not find the appellant there. While Detective Corbin was in the process of reducing the statements of the three above-named witnesses to writing at the Western District Police Station, the appellant came there of his own volition at approximately 10:45 a.m. Although taking time to give the appellant his Miranda warnings, Detective Corbin then had him detained in another part of the building until Detective Corbin finished his interrogation of the witnesses. It was not until approximately 12:20 p.m. that Detective Corbin was able to turn his attention to the appellant.

The appellant had voluntarily presented himself at the Western District Police Station in order, ostensibly, to inquire as to the whereabouts of his girlfriend, the victim of the crime. To this inquiry, Detective Corbin responded by asking the appellant when he had last seen the victim alive. He responded that he had not seen her at any time after 7 p.m. on the night of January 31. The knowledge possessed by all three of the witnesses already referred to belied that statement.

However much probable cause may have accumulated in the mind of Detective Corbin by 10:45 a.m., we think it clear from the record that ample probable cause for the arrest of the appellant had accumulated by 12:20 p.m. when Detective Corbin turned his attention to the appellant. Without the predicate of an unlawful detention as of that time, the elaborate theory spun out of Wong Sun and Brown v. Illinois has no foundation on which to rest. We note, moreover, that the situation here dealt with wherein the appellant presented himself to the police station, was a far cry from that condemned in Brown v. Illinois, at 45 L.Ed.2d 428:

“The illegality here, moreover, had a quality of purposefulness. The impropriety of the arrest was obvious; awareness of that fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their testimony, that the purpose of their action was ‘for investigation’ or for ‘questioning.’ The arrest, both in design and in execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up. The manner in which Brown’s arrest was effected gives the appearance of having been calculated to cause surprise, fright, and confusion.’’ (Footnotes and references omitted)

There being no showing of a primary illegality, the question of exploitation or attenuation is moot.

Refusal to Reopen the Case

The appellant’s final contention is that Judge Ross abused his discretion in refusing to permit the appellant to reopen his case in an attempt to obtain the presence and testimony of an additional witness. In context, it is apparent that the reopening of the case would have entailed a continuance from a Friday afternoon, when the case was ready to go to the jury, until the following Monday morning.

Before adjourning for lunch on Friday, November 4, 1974, both the State and the defense had rested. Upon reconvening at 1:45 p.m., defense counsel informed the court that he had received a telephone call during the lunch hour from Miss Ola Gardiner, who worked at St. Martin’s Catholic College in the Catonsville area. Miss Gardiner was calling in response to a call made to her by the appellant and, on the basis of recollection alone, offered to defense counsel the opinion that on February 1,1974, the appellant had arrived for work at approximately 7:20 a.m. This testimony did not go to the central question of guilt or innocence and would not have exculpated the defendant. Its arguable effect would have been to impeach, at least as to the precision of her recollection, the testimony of Rita Finch to the effect that she saw the appellant standing on the corner on the morning of February 1, at “about 7:30.” The impact, at most, would have been highly peripheral.

Miss Gardiner had further indicated to defense counsel that she “absolutely refused to testify.” Defense counsel attempted to call her back, after Miss Gardiner hung up, and learned from a co-worker that although Miss Gardiner was on the job, she could not be located at that time.

The trial had been scheduled for quite some time and there had, indeed, been three prior trial dates set. The name of Rita Finch had been discovered to the appellant.

No showing having been made as to why the appellant could not have learned of the existence of Miss Gardiner before the afternoon of the last day of the trial, no reasonable assurance being given as to whether Miss Gardiner would testify or as to the nature of her testimony, and the whole matter, even taking it in the light most favorable to the appellant, being no more than collateral, we cannot say that Judge Ross abused his discretion in declining to continue the case. In refusing to grant the motion, he said:

“We were successful in bringing the case to the point where we could start argument at 2:00 o’clock and get it to the jury hopefully early this afternoon. And the only reason we didn’t was because of this request first for a delay by defense counsel to the proceedings. It seems to me that the thing to do is to go ahead, send the case to the jury and then, if on motion for new trial I am persuaded that this is evidence which would have, and I assume it’s a guilty verdict, if there is a guilty verdict, then, if I’m persuaded on motion for new trial there is a witness who would have testified as this mysterious person on the telephone has indicated she would, and that in my opinion that would have affected the verdict of the jury, then I can always grant a new trial. I hate to take a case to this point when we are ready to go to the jury with argument and instructions and delay it for a three or four day period in hopes that some witness will appear and give testimony which could be helpful. It serves no interest. If we don’t get the witness, then how do we explain that to the jury on Monday morning? We do get the witness to testify, that would be one thing. But we are at a juncture where we’ve got to delay the case for probably a three-day period, and not really certain as to what if anything is going to come after that, and certainly that is not a fair way to treat a jury.”

We see no abuse of discretion.

Judgment affirmed.

      . This limited statement, standing alone, would be, as we analyzed in Evans in Part IIGe, constitutionally inoffensive. Since all of the elements of malice are given, there is nothing left to be presumed. As we there observed
      “The obvious question is, ‘Why presume malice when all of its elements are already given as established facts?’ Since malice is, by definition, ‘intentional killing absent justification, excuse or mitigation,’ the above statement posing as a presumption is no presumption at all. From A, B and C, we may presume D; but from A, B and C, we do not presume A, B and C. The ‘presumption’ as thus expressed is the equivalent of saying, ‘From the given establishment of all elements of malice we will presume mahee.’ or, alternatively, ‘From an intentional killing, absent justification, excuse or mitigation, we will presume an intentional killing, absent justification, excuse or mitigation.’ ”