Miller v. State

843 A.2d 803, 380 Md. 1, 2004 Md. LEXIS 53

• Court: Court of Appeals of Maryland
• Decided: February 19, 2004
• Docket: 90, Sept. Term, 2000
• Status: Published

Opinions

WILNER, Judge.

Appellant, John Albert Miller, TV, was charged in the Circuit Court for Baltimore County with the murder, attempted rape, first degree sexual offense, robbery, and false imprisonment of 17-year-old Shen Poehlman. After the State filed a notice of its intention to seek the death penalty, the case was removed to Allegany County for trial. A jury in that court convicted Miller of premeditated murder, first degree sexual offense, robbery, and false imprisonment. A judgment of acquittal was entered on the charge of attempted rape.

At a separate sentencing proceeding, the jury found, beyond a reasonable doubt, that Miller was a principal in the first degree in the murder and that the State had proven, as an aggravating circumstance, that the murder was committed in the course of a first degree sexual offense. The jury found that a second alleged aggravating circumstance — that the murder was committed in the course of a robbery — was not proved. Five mitigating circumstances were found by one or more of the jurors. Two such circumstances, found unanimously, were that Miller had not previously been convicted of a crime of violence and that he had a poor family environment. At least one, but not all, jurors also found as mitigators that Miller had children, that he was remorseful, and that he would likely die in jail. The jury unanimously concluded, by a preponderance, that the aggravating factor outweighed the mitigators and thus sentenced Miller to death. In addition to the death sentence imposed for the murder, Miller was sentenced to 30 years in prison for the first degree sexual offense, five years consecutive for the robbery, and one year concurrent for false imprisonment.

Miller appealed, raising fifteen issues that were fully briefed by him and the State. Just prior to the date set for oral argument, however, Miller filed a motion for new trial, claiming, as newly discovered evidence (1) the decision of the United States Supreme Court in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which he urged rendered the statutory process for weighing mitigating factors against aggravating factors unconstitutional, and (2) that Clarence Bobbitt, a State’s witness against him, had received an inducement for his testimony. We postponed argument on the appeal to give the Circuit Court an opportunity to resolve the motion. In August, 2002, the court denied the motion, finding that (1) assuming the evidence relied upon by Miller with respect to Bobbitt constituted newly discovered evidence, he had not met his burden of demonstrating a substantial or significant possibility that the verdict of the jury in either the guilt/innocence or sentencing phases of the trial would have been affected, and (2) the decision in Ring v. Arizona did not constitute newly discovered evidence and did not, in any event, render the Maryland statute unconstitutional. Miller appealed from the denial of his motion, and we consolidated the two appeals and held oral argument on both. By the choice of counsel, the oral argument focused on the issues raised in the motion for new trial.

Because of an unusual divergence of views among the members of the Court, there is in this case no majority opinion on all of the issues. Judge Raker would affirm the verdicts and the prison sentences but vacate the death sentence based on her view that the preponderance standard, required by statute and Rule of this Court to be used in determining whether the aggravating factor found by the jury outweighed any mitigating factors found by one or more of the jurors, is unconstitutional under principles enunciated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, supra. In declaring that the death sentence should be vacated on that ground, she is joined by Chief Judge Bell and Judge Eldridge. Judge Battaglia, joined by Chief Judge Bell and Judge Eldridge, believes that the entire judgment should be reversed and that Miller should be awarded a new trial because of newly discovered evidence that the witness, Bobbitt, may have been promised leniency by the State in return for his testimony. They believe that, had that new evidence been presented to the jury, there is a reasonable possibility that the jury would have acquitted Miller of the first degree sexual offense charge, which would have made him ineligible for the death penalty, or, at the sentencing proceeding, would have failed to find the necessary aggravating factor, that he committed the murder while committing or attempting to commit the first degree sexual offense.

Along with Judges Cathell and Harrell, I believe that Miller has presented no basis for disturbing either the verdicts or the sentences. Judge Raker joins us in holding that the verdicts and prison sentences should be affirmed. The Court is thus in the very peculiar position of having three votes to reverse the death sentence under Apprendi/Ring, three votes to reverse the convictions and all sentences on the ground addressed by Judge Battaglia, four votes to affirm the verdicts and prison sentences, but four votes to reverse the death sentence. The judgment of the Court will therefore be to affirm the verdicts and prison sentences, reverse the death sentence, and remand for a new sentencing proceeding on the murder conviction, with no majority of the Court as to why. The opinions authored by Judges Raker and Battaglia address only the one issue upon which they would reverse. Because Judge Cathell, Judge Harrell, and I would affirm the judgment in its entirety, it falls to us to address all of the issues raised by Miller.

I. BACKGROUND

A Introduction

Miller does not contest that he lured Shen Poehlman to his apartment at the Bentley Park Apartments, in the Reisters-town area of Baltimore County, on July 28,1998, with an offer of a baby-sitting job, and he no longer contests that, while she was in his apartment, he strangled her to death, using a belt. He also does not contest that he engaged in sexual activity with Ms. Poehlman. The substantive issues relevant to this appeal are (1) whether the sexual activity was consensual on Ms. Poehlman’s part, as Miller maintained, or was violent and non-consensual and was of a nature to constitute a first degree sexual offense, and (2) whether the murder was committed in the course of a first degree sexual offense.

B. Ms. Poehlman’s Disappearance and Events Leading to Miller’s Arrest

In July, 1998, Shen Poehlman was a 17-year-old young woman who had just graduated high school with honors. She had a boyfriend, was working part-time during the summer, and was about to go off to college in Florida. She spent the afternoon of July 27 with her best friends, Lauren and Jessica, at the Bentley Park Apartments pool, where Jessica worked as a lifeguard. Shen and Lauren were employed as part-time telemarketers and were due to work from 5:30 to 9:30 that evening. Lauren left the pool around 3:30 or 4:00, but Shen remained for a while with Jessica. The girls agreed to meet at Lauren’s home after work and spend the night there. Shen left the pool at about 4:30. She later told Lauren that, as she was leaving, a man had asked her to babysit for him the next day and that she had agreed.

After Shen left, Miller, a resident of the apartment development who had been to the pool on earlier occasions, sometimes with a woman, approached Jessica and asked whether she and Shen had boyfriends. During a conversation that lasted about 45 minutes, he told Jessica that the woman he sometimes brought to the pool was an ex-girlfriend, that he had an ex-wife and children who lived in Rochester, New York, and that he had a five-year-old nephew who was coming to stay with him. Jessica observed a distinctive tattoo on Miller’s arm and said that she had previously seen him driving a Geo Tracker. She recalled that he used the name “John.”

When Shen and Lauren finished work, they went to Lauren’s home. Lauren left to pick up Jessica, but Shen remained because she was waiting for a call about the babysitting job. Upon their return, Shen said that she had received the call. Lauren and Jessica were concerned, and Lauren advised Shen not to take the job with someone she did not know, but Shen persisted, although she agreed to page them when she arrived at Miller’s apartment, at about 10:00 a.m.¹ When no message had been received from Shen the next day, Lauren and Jessica became worried and began looking for her car or the Geo Tracker. Unable to locate either, they contacted Shen’s mother. When Shen failed to report for work at 5:30, the Baltimore County police were called.

Officer Ransom met with Jessica, Lauren, and Shen’s mother at the apartment pool around 6:00. Lauren and Jessica related to him the events of the previous day, and Ransom radioed a description of both Shen and Miller. Based on what he had learned, Officer Ransom did not regard the matter as a routine “missing juvenile,” and he called his supervisor, who dispatched additional officers to assist in locating Shen. By 7:00, they learned that a John Miller lived in Apartment 3B at the Bentley Park Apartments, and they went to that address. They also had obtained a New York registration for the green Geo Tracker that Jessica had described.² When there was no response at the apartment, they had a maintenance man let them in to see if Shen was there. In accordance with explicit instructions they had received from their sergeant, they looked only in places that would hide a person and did not open any drawers. Using flashlights, they slowly looked in the rooms, hallways, and closets, and finding no one, they left without disturbing anything. One of the officers observed a set of golf clubs in a closet.

The police continued to search the general area, leaving Officer Arrington in the parking lot in front of Miller’s apartment. At about 9:10 p.m., a Geo Tracker fitting the description of the car they were looking for appeared without lights, approached the police car where Arrington was sitting, but then backed away and drove off. Arrington reported what he had seen and attempted to find the car but was unable to do so. When he returned to the parking lot, he saw the Geo parked in front of the apartment. Sergeant Price, in charge of the investigation, approached the apartment and knocked on the door. Ms. Sherman answered and, when asked if anyone else was there, she responded that John was in the bathroom and invited the officers inside. Upon Miller’s exiting the bathroom, Sergeant Price informed him that he was bringing two girls to see if he was the person who was talking with Shen the previous day. Officer Ransom brought Jessica and Lauren to the apartment parking lot. When Miller, in the company of several officers, exited the apartment, the girls immediately began to cry and said “that’s him, that’s him.” At that point, which Sergeant Price said was about 9:30 p.m., Miller was arrested, handcuffed, patted down for weapons, and taken to the police station for further investigation. The apartment was secured pending issuance of a search warrant.

C. Miller’s Statements and Subsequent Events

As the search continued for Shen, Sergeant Price notified the homicide unit, and Detective Hill, a homicide detective, met with Miller at the police station. Miller was given his Miranda warnings at about 11:30 p.m. and questioned about his knowledge of Shen’s disappearance and whereabouts. Miller said that, in May, he had come to Baltimore from Rochester with Ms. Sherman, that she had obtained a job in Baltimore and that he had hoped to get a job with the Orioles. In an oral statement later reduced to writing, he said that, after learning Shen’s name from the lifeguard, he asked if she could babysit for him in about two weeks, as his children were coming from New York, that Shen asked him to call her that evening around 10:00, that he did so but she said that she was going away for a week, and he said that he would call her when she returned. He claimed that he had no further contact with Shen. The next day, he said, he took Ms. Sherman to work, then returned to his apartment, got his golf clubs, and played golf with three other men from about 9:00 a.m. to 2:30 p.m. He then went shopping for an engagement ring for Ms. Sherman and did a few other errands. When he returned to his apartment, he was arrested.

At about 3:00 a.m., while Miller was still being questioned, Detective Walsh located Shen’s car in a dead-end court of an apartment complex not too far from the Bentley Park apartments. The windows were up and the car was locked. In the back seat was Shen’s body, lying face down, partially covered with a blanket. Her head and shoulder were visible. Because it was obvious to Detective Walsh (and, upon his arrival, Detective Bollinger) from signs of lividity that Shen was dead and had been dead for some time, he did not disturb the scene.

Detective Hill was informed of the discovery at about 3:15 a.m. He told Miller that Shen’s body had been found and stated that he did not believe Miller’s story. Miller put his hands over his face, began shaking, and admitted that he had killed Shen. He then gave a long oral statement followed by a written one. In those statements, he admitted that he met Shen at the pool around 9:30 on the morning of the 28th and took her to his apartment. He said that he gave her some chastity belts, which she put on, that she laid down on her stomach, and that he then performed oral sex on her, masturbated, and ejaculated on her back. When she promised not to tell anyone, he panicked, believing that she would, so he put a plastic clothing bag over her head, telling her that he merely wanted her to pass out. When she pretended to pass out but had bitten a hole in the plastic, he panicked again and put a pillow over the bag and a belt around her neck. When she asked him to stop, he did. He said that, at or about this point, he called and spoke with Ms. Sherman. After finishing the call, he put Shen in her car, took her to another apartment complex, covered her with a blanket from her trunk, and left her. He said that she was still breathing, that he should have called for help, but that he left her in the locked car, with the windows up, in the 90-degree heat. He took her key, shirt, and purse, threw the key near a tree and the purse and shirt in different dumpsters.

Following the statement, Miller took the detectives to the dumpsters, where they recovered Shen’s shirt and purse, and to the tree, where they found the car key. Upon his return to the police station, Miller was left under guard in an interview room, from which he made a number of telephone calls. His part of the conversations was overheard by the attending officers, who later testified about them. In some of those calls, he admitted masturbating but denied “having sex.” In a call to his father, he admitted having oral sex with Shen as well as masturbating on her. In some calls, he said that he had killed Shen; in others, he said that she was, or may have been, alive when he left her but that, by leaving her locked up in the car in ninety degree heat, it did not matter. In most, he admitted strangling her and admitted as well that he could have saved her and knew he could have saved her, but chose not to do so. He told his mother that “one thing led to another, and he was afraid she was going to tell, and he choked her.” He added that “she was alive when he left her, but the car was closed up, and it was ninety degrees out.” In a call to someone named Kim, who, as it turned out, was a former girlfriend in Rochester, he said that “the girl was almost dead or dead when I left her,” adding that “it probably wouldn’t have mattered” as “it was so hot in the car all closed up.” He said to someone named Chris that a girl from the pool came over, that “we started messing around,” but he got seared when he realized she was under age, that he put a bag over her head and tried to knock her out, and that he then “put my belt around her and choked her and put her in her car.” He added that “I think I could have saved her, but I was afraid.” He told Vito Calzone that “[a]fter I hurt her, I couldn’t let her go. I strangled her a little bit. I left her in the car, and she ended up dying.”³

D. Additional Trial Evidence

Miller did not testify at his trial. Much of the evidence, already described, came from the various police officers, from Jessica and Lauren, and from photographs of Miller’s apartment, of Shen’s body as it was recovered, and from the scene where her car was located. It was stipulated that vaginal, rectal, and oral swabs taken from Shen’s body were negative for the presence of semen, but that a semen stain on Shen’s blouse came from Miller.

Ms. Sherman testified that Miller had taken her to work on the 28th and then used her car. She called at the apartment between 9:00 and 9:30 a.m., but got no answer. Miller called her at work between 11:30 and noon and sounded rushed, which, to Ms. Sherman, was unusual. He came to pick Ms. Sherman up from work at about 8:30, which was an hour before she was due to leave. He was sweating profusely and had vomited, claiming that something he ate for lunch had made him sick. Nonetheless, they stopped at a Taco Bell on the way home to get some carry-out food to take home. When they approached the apartment, they noticed several police cars. Miller turned off the car lights and put the car in reverse, claiming that he was looking to find a parking space. When the police went around the block, Miller pulled in front of the apartment.

Ms. Sherman said that, upon entering the apartment, she turned on the lights, but that Miller followed her and turned off the lights. He then entered the bedroom, changed clothes, went to the balcony, and attempted to climb down from the second story apartment, saying that the police were after him. Upon questioning by Ms. Sherman, he said that he had met a girl at the pool, that she had come over to the apartment, and that “he thought that he had hurt her.” As the police approached the apartment, he became frantic and added “I think I might have killed her.” When the police knocked on the door, he ran into the bathroom and asked Ms. Sherman to tell the police, first, that he was not there and then that he had been playing golf all day. Ms. Sherman declined to do that. She opened the door and invited the police into her apartment.

The Medical Examiner opined that the cause of death was ligature strangulation and that the herringbone pattern that he observed on Shen’s neck was consistent with having been caused by the belt that the police eventually found in Miller’s apartment. The Medical Examiner also described a number of bruises and abrasions that he found on Shen’s head, including the lip. He testified that the bruises were the result of blunt force injuries inflicted while Shen was still alive, with her having been struck on the head with a blunt object. He found similar bruises in the area of the right front breast and the left leg and a number of abrasions on the head and on other parts of Shen’s body. The doctor attributed some of the body bruises, but not those on the head, to a “terminal fall”— the last fall as Shen was dying. In the autopsy report itself, the Medical Examiner concluded that “[t]he pattern of injuries of the head and chest are consistent with Ms. Poehlman having been struck once on the chest and a minimum of four times on the head with a blunt object.”

The autopsy commenced at 11:40 a.m. on July 29. The doctor said that, because the autopsy was performed so quickly after delivery of the body, the time of death could be fixed with greater certainty. From the condition of the body, the medical examiner opined that Shen had been dead for “close to” 24 hours. He also testified, based on the lividity in the victim, that she had laid on her back for eight to twelve hours before being moved. That evidence, coupled with Miller’s statements and Ms. Sherman’s testimony regarding the telephone call, not only established that Shen was in Miller’s apartment when she died but that she had been kept there for a considerable period of time before being placed in her car, a fact which, as noted above, Miller now concedes. See ante, n. 3.

Finally, for our present purposes, the State produced Clarence Bobbitt, then an inmate at Roxbury Correctional Institute. Bobbitt and Miller had been cellmates at the Baltimore County Detention Center while Miller was awaiting trial. Bobbitt recounted a conversation he had with Miller about the crime, in which Miller confessed that the sexual activity was not consensual, as he had maintained. Miller told Bobbitt that he had asked the girl to babysit and that she had agreed:

“She knocked on the door. He opened it. She asked him where the kids were. He said they ain’t here right now. And then she came in. And he tried to seduce her. She said no. Threw her on the bed. He smacked her, ripped her top off, started sexually assaulting her. And then he strangled her with his hand. And he put a bag over her face. And then he put a chastity belt on her face ... I mean around her neck, and stepped on one-half and pulled on the other half of it. And realized what he had done. And then he went and took her down ... wrapped in a blanket, took her downstairs, put her in the backseat of her car, drove like two blocks and parked the car, took the keys, and took the keys and her money out of her pocket ... I mean took the money out of her pocketbook and put it in her back pocket, put it in his pocket. Took everything else, chastity belt, her shirt cause he had got semen on it and threw all that in a trash can.”

Miller’s convictions rested essentially on this evidence. Additional facts will be recounted in connection with our discussion of the various issues raised in the appeals.

II. DISCUSSION

As noted, Miller has raised fifteen issues in his direct appeal. In the appeal from the denial of his motion for new trial, he embellishes his argument that the weighing aspect of our death penalty statute is unconstitutional and adds the argument that newly discovered evidence shows the prospect that Bobbitt did receive leniency for his testimony, which entitles him to a new trial. We shall consider those issues first, because they are the ones that divide the Court.

A. Apprendi and Ring

Maryland law provides three possible penalties for a person found guilty of first degree murder: death, imprisonment for life without the possibility of parole, or imprisonment for life with the possibility of parole. A person so convicted may be sentenced to death, however, only if (1) the State gives advance written notice of its intent to seek the death penalty and informs the defendant of each aggravating factor upon which it intends to rely; (2) with exceptions not relevant here, the jury⁴ finds, beyond a reasonable doubt, that the defendant was a principal in the first degree in the murder; (3) the jury finds, beyond a reasonable doubt, the existence of at least one aggravating factor that is specified in the law and of which the State has given notice; and (4) the jury either finds no mitigating circumstances or finds, by a preponderance, that the aggravating factor(s) it has found to exist outweigh any mitigating eircumstance(s) that one or more jurors have found, by a preponderance of evidence, to exist.

The jury in this case was instructed in conformance with that statutory construct. As noted, it found, beyond a reasonable doubt, that Miller was a principal in the first degree in Shen’s murder and that the murder was committed in the course of a first degree sexual offense, which is one of the aggravating factors allowed by the statute. It also found, presumably by a preponderance, as instructed, that that aggravating factor outweighed any and all mitigating factors found by one or more of the jurors. Hence, the death sentence. In his direct appeal from the judgment and in his appeal from the denial of his motion for new trial, Miller claims that, under the pronouncements and holdings of the Supreme Court in Apprendi v. New Jersey, supra, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, supra, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the use of a preponderance standard to govern the weighing of aggravating and mitigating factors is unconstitutional.

That argument was made in Borchardt v. State, 367 Md. 91, 786 A.2d 631 (2001), cert. denied, 535 U.S. 1104, 122 S.Ct. 2309, 152 L.Ed.2d 1064 (2002), which was decided after Apprendi but before Ring was announced, and was rejected. It was made again, after Ring was decided, in Oken v. State, 378 Md. 179, 835 A.2d 1105 (2003), and again rejected. Our decisions in Borchardt and Oken were four-to-three decisions. Judge Raker, joined by Chief Judge Bell and Judge Eldridge, urged in dissent that first Apprendi and then Ring did, indeed, require that a finding that aggravating factors outweigh mitigating factors be beyond a reasonable doubt and that any lesser standard was unconstitutional. They continue in that belief, which accounts for their separate opinion in this case. As expressed only a few months ago in Oken, however, a majority of this Court holds to the belief that Apprendi and Ring do not render the preponderance standard, applied only to the judgmental weighing process and not to any fact actually deducible from evidence, unconstitutional. Until the Supreme Court chooses to declare otherwise, that remains the judgment of this Court.

B. Clarence Bobbitt

We have recounted Bobbitt’s testimony. Though suspect in that it came from a “jailhouse snitch” with a significant criminal record, it did serve to corroborate other evidence indicating that the sexual activity that concededly occurred was not consensual, that it constituted a first degree sexual offense, and that Shen was strangled to death in the course of that offense. At trial, Miller objected to Bobbitt’s being called as a witness, claiming that the State had promised him leniency in return for his testimony and had failed to disclose that fact. The motion was denied, and Miller did not complain about that ruling in his appeal from the judgment. In his motion for new trial, however, he claimed to have discovered new evidence of such leniency, evidence of which he could not have been aware at the time of trial. As noted, the court found that Miller had failed to show that there was any substantial or significant possibility that, had the new evidence been before the jury at trial or sentencing, the verdicts or the sentence would have been any different. That ruling is before us in Miller’s appeal from the denial of his motion for new trial.

Judge Battaglia, joined by Chief Judge Bell and Judge Eldridge, find merit in Miller’s appeal from the denial of his motion for new trial. As only three judges join that opinion, it does not represent the majority view of this Court. Regrettably, a rather detailed factual exposition is required to demonstrate why Miller’s complaint has no merit.

Prior to Bobbitt’s taking the stand, defense counsel, having reviewed his prison file, moved to preclude him from testifying on the ground that the State had made promises of leniency in return for his testimony and had failed to disclose that fact. The court held a hearing on that motion, at which the prosecutors in the Miller case — Mr. Norman and Ms. Coffin — denied that any deals had been made for his testimony. Mr. Norman represented to the court that “[t]here is no leniency promise to this man in exchange for his testimony.” Ms. Coffin added, “As an officer of the Court, no member of the State’s Attorney’s Office ever extended any offers to Bobbitt in exchange for his testimony in State v. Miller.”

The State submitted an affidavit from the Assistant State’s Attorney who prosecuted Bobbitt that an agreement had been made with Bobbitt, but that it did not involve his testifying in the Miller case. Rather, the affidavit was to the effect that the guidelines in Bobbitt’s case for first degree burglary and unauthorized use warranted a sentence of from seven to ten years in prison and that the agreement, in return for a guilty plea, called for ten years, with all but five years suspended in favor of three years probation and a TAS[C] evaluation.⁵ The prosecutor denied even knowing that Bobbitt was to be a witness in the Miller case until after the plea agreement had been made. On this evidence, the court denied the motion to exclude Bobbitt’s testimony, finding that “there has been no showing that the State entered an agreement, deal, or understanding with this witness, whether formally or informally.” The correctness of that ruling is not before us.

Bobbitt, 19 at the time, admitted at trial that he had previously been convicted of first degree burglary and possessing and selling handguns, that he had been using drugs since he was 14, that he had been carrying guns since he was 13, that he had been in jail since he was 17, that he was currently incarcerated for violating probation on the burglary and gun charges, that he had pled guilty to new charges of car theft and burglary, and that he was then awaiting sentence on those convictions. He repeatedly denied that any deal had been made for his testimony and said that he was not expeet-ing any leniency because of his testimony. The relevant colloquy, on cross-examination, was:

“Q ... You’ve already pled guilty to burglary again, is that correct?

A. Yes

Q. And unauthorized use?

A. Yes.

Q. And you’re pending another since. When are you coming up for sentencing?

A. Next month. No, it’s this month, the 9th.

Q. February 9th?

A. Yes sir.

Q. And aren’t you expecting the Judge to go easier on you cause you’re here testifying today?

A. No. See I had pleaded guilty before I even found out.

Q. Answer the question, sir.

A. Oh, no.

Q. No?

A. No sir.”

Bobbitt added that he had not even told his lawyer about the conversation with Miller when he discussed and entered the guilty plea.

The sentencing, scheduled for February 9, was postponed. Bobbitt was eventually sentenced by Judge Fader in April, 2001 — more than a year after he testified in the Miller case. At the time, he was serving a four year sentence imposed by Judge Levitz in another case. Judge Fader suspended the entire ten year sentence and remanded Bobbitt to prison to complete the other sentence. It is not clear from the record before us whether, at that time, he had been accepted into the TASC program or what progress, if any, he had made with his drug problem.⁶

Two years after Ms testimony in the Miller ease, Bobbitt was called as a State’s witness in the prosecution of his uncle, Richard Joswick, for murder. Although there was no connection between the Miller and Joswick cases, defense counsel in Joswick brought out the fact that Bobbitt had testified in Miller, suggested that he had been given leniency in return for his testimony in a murder case, and sought permission to explore whether his current testimony in Joswick was similarly motivated. Counsel cross-examined him on that, and Bobbitt again demed expecting or receiving any benefit for Ms testimony in Miller:

“Q Mr. Bobbitt, you have testified before, haven’t you?

A Yes.

Q You testified in a murder case, did you not?

A Yes, sir.

Q And when you testified in that case, the person that you testified against went to jail, didn’t he?

A He got the death penalty.

Q Now, you had a charge hanging over your head at that time, did you not?

A Yes, and I went to prison.

Q You went to prison, but you didn’t go to prison as long as you could have; is that right?

A. Yeah.

Q. And you got a benefit?

A. Not for testifying I didn’t.

* * * *

Q. But you expected a benefit from that, did you not?

A. No, I did not.”

(Emphasis added).

On re-direct examination, the prosecutor elicited the testimony that Miller now complains of and that Judges Battaglia, Bell, and Eldridge find compelling:

“Q. Just so I’m clear, Mr. Bobbitt, you testified in a matter completely unrelated to this case against a John Miller, is that right?

A. Yes, sir.

Q. Did you have a plea agreement in that case?

A. Yeah.

Q. Where you entered into a negotiation with the State?

A. Like a plea with the State?

Q. Yes.

A. Yeah, we pled for a sentence.

Q. Exactly. And you had entered into a bargain; is that right?

A Yes, sir.

Q. In exchange for that bargain, you gave certain testimony in that case; is that right?

A. Yes, sir?

Q. Did anything like that take place in this case?

A. No, sir.”

Regarding Bobbitt’s ambiguous response to the penultimate question, recorded as a question, rather than as an answer, as newly discovered evidence that Bobbitt indeed, may have received a plea bargain calling for him to testify in Miller’s case, Miller moved for a new trial. His argument was that Bobbitt had given false testimony regarding the bargain, that the State knew or should have known that his testimony was false, and that its failure to advise Miller of Bobbitt’s false testimony constituted a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). At the hearing on that motion, Mr. Norman, who had prosecuted Bobbitt, again testified that no promises had been made to Bobbitt in return for his testimony. With the concurrence of defense counsel, the State proffered that Ms. Coffin, who assisted in the prosecution of Miller, would give similar testimony — that she had not even met Bobbitt until the day he testified in Miller’s case and had made no promises or deals for his testimony. Neither side called Bobbitt to testify.

Stephen Bailey, who prosecuted Joswick, testified regarding the colloquy upon which Judge Battaglia relies (to the exclusion of all other evidence). Bailey explained that Joswick, Bobbitt’s uncle, was accused of breaking into his girlfriend’s house and strangling her and that the investigation revealed that Bobbitt, who had just been released from prison, had been with Joswick the day following the murder. Bailey said that he had no knowledge of Bobbitt’s involvement in the Miller case and, initially, had no intention of calling Bobbitt to testify in Joswick. He described Bobbitt as a very reluctant and emotional witness — during cross-examination, counsel was “bringing out the full import of the fact that Bobbitt’s testimony could possibly send his uncle to prison for the rest of his life” and that “there were tears running down his face, he had mucus running out of his nose, his shoulders were visibly heaving, that continued through the cross and redirect.” Bailey added that, because of Bobbitt’s agreement to testify, his own mother — Joswick’s sister — would no longer speak to him.

Bailey said that he had talked with Bobbitt on two occasions prior to the Joswick trial and had made clear to him that there would be no deals for his testimony in that case, and that at no time during those conversations had Bobbitt ever indicated that he had made a deal in connection with his testimony in the Miller case. This became significant, because, prior to the Joswick trial, Bobbitt was arrested again and faced the prospect of having Judge Fader revoke the probation. In fact, that is what occurred: he received a three-year sentence for the new crime, and Judge Fader did, indeed, revoke the probation and direct execution of the entire ten-year sentence that had previously been suspended. Based on the cross-examination, however, Bailey suspected that defense counsel had some evidence indicating that a deal had been made with respect to the Miller case and decided to explore the matter on re-direct examination.

Having heard all this evidence, the trial judge found, as a fact, that, even if that one ambiguous response could be regarded as newly discovered evidence, “the Defendant has not met his burden to demonstrate that there is a substantial or significant possibility that the verdict of the jury in either the guilt/innocence or the sentencing phases of this case would have been affected.” The court obviously did not believe that, had the jury heard that one response, in context and along with all of the other evidence bearing on the question, its verdicts and sentence would have been any different.

Miller, and Judges Battaglia, Bell, and Eldridge, view the one ambiguous response, recorded not as an answer but as a question, not only as clear proof that Bobbitt, indeed, may have received a benefit for his testimony but as so significant that, had the jury heard that inquisitive response, it likely would not have convicted Miller of the sexual offense or sentenced him to death.

Miller’s argument, and our three colleagues’ belief, that Miller is entitled, as a matter of law, to a new trial is wholly unwarranted; there is no reasonable basis whatever for such a conclusion. They ignore the unambiguous testimony of Bobbitt, in both the Miller case and the Joswick case, that no deal was made for his testimony in Miller, they ignore the unambiguous testimony of every prosecutor involved in the matter, and they give no credence whatever to the finding of the trial judge, who heard all of the evidence that the jury heard, that Miller had failed to persuade him that there is any substantial or significant possibility that the one ambiguous response would have produced any different result. There is no reasonable basis for a belief that, had the jury heard this one response from a highly emotional witness, it would have disregarded or found unpersuasive the clear and unambiguous testimony of every prosecutor involved and of Bobbitt himself that no deal had been made for his testimony.⁷

Newly discovered evidence warrants a new trial only if it “may well have produced a different result, that is, there was a substantial or significant possibility that the verdict of the trier of fact would have been affected” and that the only issue on appeal from a ruling denying such a motion is whether the trial court abused its discretion in concluding that that test had not been met. Campbell v. State, 373 Md. 637, 821 A.2d 1 (2003); Baker v. State, 367 Md. 648, 695-96, 790 A.2d 629, 657 (2002); Jackson v. State, 358 Md. 612, 626, 751 A.2d 473, 480 (2000). There is nothing in this record to justify upsetting the trial judge’s conclusion that Miller had failed to establish that possibility.

C. Reasonable Doubt Instruction at Sentencing

At the conclusion of the guilt/innocence stage of trial, the court instructed the jury that the State had the burden of proving guilt beyond a reasonable doubt. It told the jury that the State need not prove guilt beyond all possible doubt or to a mathematical certainty, but that proof beyond a reasonable doubt “requires such proof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own business or personal affairs.” (Emphasis added). No exception was taken to that instruction, and no complaint is made about it here.

At the sentencing proceeding, the trial court correctly informed the jury that, in order to impose a sentence of death, it was required to find, beyond a reasonable doubt, that Miller was a principal in the first degree in the murder and that he committed the murder while attempting to commit a first degree sexual offense. The court defined “reasonable doubt” as follows:

“A reasonable doubt is defined in the law as such a doubt as would cause a reasonable person to hesitate to act in the grave or more important transactions of ones life. Proof beyond a reasonable doubt does not mean proof beyond any doubt or proof to a mathematical certainty, but it does require such proof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief in an important matter affecting your own business or personal affairs.”

No exception was taken to that instruction. Miller now complains, however, about the substitution of “to hesitate to act” for “without reservation” in the first sentence, arguing that somehow this conveyed to the jury that proof beyond a reasonable doubt meant something less with respect to the sentencing requirements than it did with respect to finding guilt. He reads Wills v. State, 329 Md. 370, 620 A.2d 295 (1993) as making the instruction given at the sentencing hearing inappropriate.

The simple answer is that, as Miller made no objection to the instruction, he has waived his right to complain about it. Maryland Rule 4-325(e); State v. Rose, 345 Md. 238, 245-46, 691 A.2d 1314, 1317-18 (1997); Walker v. State, 343 Md. 629, 645, 684 A.2d 429, 436 (1996); Bowman v. State, 337 Md. 65, 67-68, 650 A.2d 954, 955 (1994). Recognizing the procedural lapse, Miller asks that we review the deficiency under plain error rule. We have defined “plain error” in a jury instruction as “error which vitally affects a defendant’s right to a fair and impartial trial” and have limited our review under the plain error doctrine to circumstances which are “compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.” State v. Hutchinson, 287 Md. 198, 203, 411 A.2d 1035, 1038 (1980); State v. Daughton, 321 Md. 206, 211, 582 A.2d 521, 523 (1990); Richmond v. State, 330 Md. 223, 236, 623 A.2d 630, 636 (1993); Ayers v. State, 335 Md. 602, 627-28, 645 A.2d 22, 34 (1994).

We do not see any such error in the instruction given at the sentencing proceeding, and thus conclude that Miller has, indeed, waived his complaint. Had we reached the issue, however, we would have found no error at all in the instruction.

In Wills, we reversed a conviction because the rather rambling reasonable doubt instruction given was “confusing and misleading” and “lean[ed] towards the preponderance standard rather than the reasonable doubt standard.” Wills v. State, supra, 329 Md. at 387, 620 A.2d at 303. Although, in a concurring opinion, Judge McAuliffe wisely suggested that trial judges “closely adhere” to Maryland Criminal Pattern Jury Instruction 2:02 when attempting to define “reasonable doubt,” — the instruction given at the guilt/innocence stage of trial — the Court did not impose that as a requirement or suggest that including “hesitate to act” in place of “without reservation” would make the instruction erroneous. We confirmed that in Hunt v. State, 345 Md. 122, 151-52, 691 A.2d 1255, 1269 (1997). We find nothing confusing or misleading about the instruction. Indeed, by using the “hesitate to act” language, the court probably gave Miller more, not less, than he was entitled to receive, as it suggested that, if the jury even had to take time to think about the matter, it would have a reasonable doubt.

D. Instructions Regarding Weighing of Mitigating and Aggravating Circumstances

The court’s instructions at sentencing focused on the written Findings and Sentencing Determination sheet that was submitted to the jury in conformance with Maryland Rule 4-343(h). Section I asked whether Miller was a principal in the first degree in Shen’s murder. Section II asked whether the two aggravating factors alleged by the State had been proved. Section III dealt with mitigating circumstances.

In its instructions regarding mitigating circumstances and Section III, the court defined a mitigating factor as “anything about the Defendant or about the facts of this case that in fairness and in mercy may make the death sentence an inappropriate penalty for this Defendant” and stated that “each of you must determine for yourself whether any mitigating circumstances exist in this case.” The court repeated that “[e]ach one of you should individually consider each mitigating circumstance.” The written document gave the jury three choices with respect to each and every mitigating circumstance: (a) that the jury unanimously found by a preponderance of the evidence that the mitigating circumstance did exist; (b) that it unanimously found by a preponderance of evidence that it did not exist; or (c) that one or more jurors, but fewer than all 12, found by a preponderance of the evidence that the circumstance existed. The jury was instructed in that regard. The court iterated again before leaving Section III that “with respect to the mitigating circumstance, that each of you should consider each circumstance.”

Finally, as relevant here, the jury was instructed that “once you consider Section III, mitigating circumstances, you shall then determine whether by a preponderance of the evidence the aggravating circumstance or circumstances outweigh the mitigating circumstance or circumstances.” The court instructed that “[i]f you do not find by a preponderance of the evidence that the aggravating circumstance or circumstances outweigh the mitigating circumstance or circumstances, the sentence shall be life imprisonment,” and conversely that “[i]f you unanimously find that the State has proven by a preponderance of the evidence that the aggravating circumstance or circumstances outweigh the mitigating circumstance or circumstances, the sentence shall be death.” (Emphasis added). Section IV of the sentencing form stated that “[e]ach individual juror shall weigh the aggravating circumstances found unanimously to exist against any mitigating circumstances found unanimously to exist, as well as against any mitigating circumstance found by that individual juror to exist.” (Emphasis added).

Miller proposed an additional instruction regarding the weighing of mitigating and aggravating circumstances and objected to the court’s failure to include that instruction. He asked that the court instruct that “[e]ach juror must engage in this weighing process individually and reach his or her own personal decision,” and that because “each juror will be weighing the same aggravating circumstance that the jury collectively has determined to exist against their own individual determination of mitigating circumstances ... the actual weighing process of aggravating circumstances against mitigating circumstances could in fact be different for each juror.”

Miller avers that his proposed instruction was necessary to implement the mandate of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) that each juror must weigh aggravating circumstances against any mitigating circumstances that the juror individually has found to exist, even if the jury as a whole has not found that mitigating circumstance to exist. He complains that the court’s use of the word “you” in describing the weighing process may have been interpreted in the plural rather than the singular sense, that the instruction thus did not properly convey that each juror must make an individual weighing decision, and that the prospect of such a misinterpretation cannot be regarded as corrected by the language in Section IV of the sentencing form.

Although Miller’s proposed instruction was not an inappropriate one, there is nothing in Mills or in any other decision cited to us that mandates its use. Nor do we find any confusion in the instructions given. In Mills, the Supreme Court interpreted the then-existing sentencing form as possibly permitting the jury to conclude that it could not weigh a mitigating circumstance against an aggravating circumstance (and thus to impose a sentence other than death) unless all 12 jurors agreed upon the mitigating circumstance, and, upon that interpretation, concluded that the sentencing scheme was unconstitutional. While the Mills case was pending in the Supreme Court, we changed the sentencing form to eliminate the ambiguity found telling by the Supreme Court, and the Court noted that the new form — the one used in this case — did serve to eliminate the problem. Mills, 486 U.S. at 381-82, 108 S.Ct. at 1869, 100 L.Ed.2d at 398-399.

Miller’s suggestion that the jurors may not have realized that, in using the pronoun “you,” the court was speaking to each of them individually and that the court had therefore regressed to the approach found wanting in Mills, is wholly speculative and unpersuasive. The court made abundantly clear that each juror was to determine and weigh individually whatever he or she found would make a death sentence inappropriate, and it repeated that point several times. As we read the instructions, it is clear that the word “you” or “your” was intended in the singular, addressed to each juror individually. When the court intended to refer to the jury collectively, as a body, it added the word “unanimously.”

E. Miranda Violation

When the police eventually found Miller at his apartment just after 9:00 p.m. on the 28th, they removed him from the apartment and talked with him in the hallway. He was not then under arrest, no guns were drawn, he was not handcuffed, and no hands had been laid on him. Without first giving him the Miranda warnings, Sergeant Price asked him where he had been all day, to which he responded that he had been playing golf. Officer Kennedy, who had noticed the golf clubs in the closet during the earlier sweep, asked if he had taken his golf clubs with him, to which he responded “yes.” When Kennedy informed Price of his earlier observation, Price asked Miller whether he had come home between the time he finished playing golf and went to the shopping mall, and he replied that he had not. He said again that he had taken his golf clubs with him. Finally, he denied having been at the pool and talked with any girls there.

Miller moved to suppress those statements as having been the product of a custodial interrogation sans Miranda warnings. After a pre-trial suppression hearing, the court granted that relief and declared the statements inadmissible, and they were not, in fact, admitted at trial. Sweeping that rather critical fact aside (indeed not even mentioning it in his brief), Miller urges that the invalidity of that interrogation tainted not just his responses at the apartment but all of the statements made later at the police station, after he had, in fact, been given his Miranda warnings. His argument is answered by Oregon v. Elstad, 470 U.S. 298,105 S.Ct. 1285, 84 L.Ed.2d 222 (1985):

“If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.”

Id. at 309, 105 S.Ct. at 1293, 84 L.Ed.2d at 232.

Miller’s attempt to distinguish Elstad is unpersuasive. The interrogation at the apartment, even if custodial in nature, was not coercive, his responses were largely exculpatory, and they had little, if any, influence on the inculpatory statements made later at the police station. He changed his story after being given his Miranda warnings, after being informed that Shen’s body had been recovered, and after Detective Hill told him that he did not believe Miller’s exculpatory explanation. Compare Fellers v. United States, — U.S.—, 124 S.Ct. 1019, 157 L.Ed.2d 1016 (2004) (finding conversation between police and defendant in absence of counsel, after defendant had been indicted to be in violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)).

F. State’s Rebuttal Argument

During the sentencing proceeding, Miller produced a former classification counselor at the Baltimore County Detention Center, who testified as to Miller’s positive adjustment when he was an inmate at the Center awaiting trial. He also produced a social worker from South Carolina, who had done a family study and who testified about Miller’s somewhat chaotic upbringing. In closing argument, defense counsel stressed that testimony in urging the jury to find various mitigating factors.

In his rebuttal closing argument, the prosecutor responded to some of that argument. He suggested that it was not surprising that Miller had behaved himself in jail, because he was not stupid, and starting problems while awaiting trial was “the last thing he needs,” that he needed to control himself until the trial was over. The prosecutor pointed that out, he said, because, if Miller was to be sentenced to life in prison, “what’s he got to lose?” The prosecutor continued, “I’m in jail, life without parole, get a little trusty action working, I see a young lady guard one day, boom, my predator nature comes out. What are they going to do?” Miller lodged an objection and a motion to strike the comment, which the court immediately sustained and granted.

The prosecutor then turned to the testimony of the social worker, that she did not regard Miller as a predator. The social worker, though occasionally testifying for defendants in capital cases, did predominantly adoption work. The prosecutor remarked, “Here is a woman, who by her own admission and a former life in the Carolinas, South Carolina, I think, decides what parents should or should not be allowed to adopt children and she doesn’t think this guy is a predator.” Miller again objected, and again the court sustained the objection.

At the conclusion of the rebuttal argument, Miller moved for a mistrial based on the two comments. The court denied the motion but instructed the jury that, during the argument, there were two objections to the prosecutor’s argument, that it had sustained both of them, and that the jury must “completely disregard the comments that were made at that point in time.” Keying on the prosecutor’s use of the word “predator,” Miller regards the comments as so prejudicial as to be beyond remediation by the curative instruction.

The prosecutor’s comments need to be taken in context. In her extensive testimony regarding Miller’s family history, the social worker described in some detail Miller’s violent nature and sexual irregularities. He had been violent with a former girlfriend, Kim, who had ended the relationship as a result. He had been violent with his former wife, Tina, both before and during the marriage. There was a restraining order outstanding against him when he married Tina, and the violence continued throughout the marriage. At least twice, Tina filed charges against him. In 1996, he was required to attend a six-month counseling clinic for batterers as a result of one of those charges. When he was 12 and his sister was eight, he sexually abused her on a regular basis for about a year. His father once caught him in bed with his sister attempting to have intercourse with her. Somewhat in summary, the witness said:

“He saw women as punching bags. He saw in his own family women as punching bags, women as providers of sex on demand, women as drug partners and women as meal tickets and then women as a source of worry that they’re going to leave you or abandon you and there was self fulfilling prophecy in that for John. His women did leave him because he was so abusive.”

At the conclusion of his cross-examination of her, the prosecutor asked the social worker whether she would characterize Miller as a sexual predator, and she replied “no.” That is the answer to which he was responding in his argument.

On this record, Miller got all to which he was entitled, and perhaps more, when the court sustained his objections and gave the curative instruction. There was no abuse of discretion in denying the motion for mistrial. Given what it heard from the social worker, the jury could not possibly have been prejudiced by the prosecutor’s brief comments, which it was instructed to disregard in any event.

G. Constitutionality of Death Penalty Statute

Miller makes what appears to be a dual attack on the death penalty law. The first, hinged on Apprendi and Ring, we have already addressed. The second is that it is unconstitutional to require a defendant to establish mitigating factors by a preponderance of evidence and to establish that non-statutorily enumerated mitigating circumstances are, in fact, mitigating circumstances. We have rejected that argument on a number of occasions, most recently in Ware v. State, 360 Md. 650, 712-13, 759 A.2d 764, 797 (2000), and see no reason to rule differently now.

H. Initial Search of the Apartment

The initial search of Miller’s apartment, in an effort to determine whether Shen was inside, occurred between 7:45 and 8:00 p.m. on the 28th. Miller moved to suppress “observations made” during that limited search, which the court denied on the ground that the police had a reasonable basis for believing that an emergency existed. Miller urges that there was no emergency and that the warrantless search was therefore unlawful. Shen, he says, had been missing for only three hours and there was no sign of foul play. The discovery of the golf clubs in the closet, he says, served to taint everything that occurred thereafter, as it led the police to disbelieve his story about having played golf that day. There is utterly no merit to Miller’s complaint.

At the time, the police had the following information. A 17-year-old young woman, described by her mother and friends as a responsible person, with no alcohol or drug problems, who had never run away before and had no reason to do so then, had accepted a babysitting job with a man named John. This man had been to the apartment pool and therefore presumably lived in the apartment complex. He had been seen driving a Geo Tracker. Shen had promised to page her Mends by 10:00 that morning and had not done so. No one had heard from her, and she had not reported for work at 5:30. She had effectively been missing for about ten hours, not three hours as Miller suggests. Her Mends and her mother had said that it was very unusual for Shen to be out of touch.

The police began doing house-to-house checks and conducting interviews. A helicopter searched for both Shen’s car and the Geo Tracker. One officer learned from a nearby convenience store that a man named John Miller had worked at the store, that he had been fired, and that he drove a Geo Tracker ■with New York tags. The store provided a telephone number, which the police traced to Apartment B3 at 415 Valley Meadow Circle, in the Bentley Park Apartment development. A records check revealed a prior false imprisonment charge against Miller. The descriptions the police received of Miller matched that of the person named John described by Jessica and Lauren. Based on that information, Sergeant Price authorized officers to knock on the door of Miller’s apartment and, if there was no response, to secure a key and enter the apartment. They were to see if Shen was inside and to check for her well-being. Sergeant Price directed the officers to search in places where a person could be, but not to go into any drawers or small places where a person could not be. According to Price, “it was just a quick sweep of the apartment for safety reasons and then they left.”

In Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486, 498 (1978), the Supreme Court noted that it had “recognized that a warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant.” In that case, the exigency was to investigate a fire in the building. In Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290, 300 (1978), the Court confirmed that it did not question the right of the police to respond to emergency situations, and that “[njumerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.” Quoting from Wayne v. United States, 318 F.2d 205, 212 (D.C.Cir.1963), the Court made clear that “[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” See also Oken v. State, 327 Md. 628, 644-45, 612 A.2d 258, 266 (1992) and Burks v. State, 96 Md.App. 173, 624 A.2d 1257, cert. denied, 332 Md. 381, 631 A.2d 451(1993).

We have no hesitation in concluding that, on the information available to the police at the time, they acted in the reasonable belief that an exigent circumstance existed that justified the brief and limited entry into Miller’s apartment. The police were looking for a teenager who had disappeared without any reason, who had accepted a babysitting job with a stranger linked to that apartment and had never returned from it. This was not a criminal investigation clothed as a caretaker function, but a legitimate effort to locate and assist a child who may have been in trouble. The initial objective was not to search the apartment, but to inquire of anyone present as to Shen’s whereabouts. The entry occurred only because no one was home. The entry and limited search were valid.

I. Instruction Regarding Victim Impact Evidence

At the sentencing proceeding, Shen’s mother testified briefly about the impact of Shen’s death on her and on Shen’s older sister and younger brother. The testimony covers only two-and-a-half pages, but it was, as expected, poignant. A letter from Shen’s father was also introduced. This kind of victim impact evidence is permitted by statute and by case law. See Maryland Code, §§ 11-402 — 11-404 of the Criminal Procedure Article; Art. 41, § 4-609(d); Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); Conyers v. State, 354 Md. 132, 177-78, 729 A.2d 910, 934 (1999) and cases cited there. Miller does not challenge the victim impact evidence itself, but rather the instruction given to the jury concerning it.

In the first part of its instructions, the court instructed the jury regarding the kind of evidence it heard and its role in considering that evidence. As part of those instructions, the court noted that the jury had heard or seen testimony or statements by members of Shen’s family, and it informed the jury:

“This testimony and these statements are known as victim impact. It should be given whatever weight you feel it deserves. The victim impact should not be considered by you in determining whether the Defendant is a principal in the first degree or whether the aggravating circumstances exist. You may consider these statements in determining, pursuant to my instructions to you and the verdict form, whether the sentence shall be death, life without parole or life. Victim impact describes the nature of the harm caused by the Defendant.”

Miller had submitted an alternative victim impact instruction, and, when the court completed its instructions, he commented that his proposed instruction is “far more instructive and explains in much more detail how the evidence is to be used.” The instruction given, he said, “is entirely too concise and does not fully explain each and every detail.” Miller asked that four particular paragraphs of his proposed instruction be added. Finding its instructions adequate, the court denied the request.

Two of the paragraphs sought by Miller essentially repeated the admonitions given by the court that victim impact evidence could not be used in determining whether Miller was a principal in the first degree or in determining whether an aggravating circumstance existed. The other paragraphs would have informed the jury that victim impact evidence could never serve as the basis for making a defendant eligible for the death penalty, that it did not constitute an aggravating circumstance of its own, and that it could not be considered in determining whether the aggravating circumstances outweigh any mitigating circumstances. Those points were made clear in other instructions governing the aggravating circumstances the jury was to consider and how it as to weigh those circumstances against any mitigating circumstances.

The principal argument made now by Miller is that the instruction that victim impact evidence “should be given whatever weight you feel it deserves” allowed the jury to give too much weight and improper weight to the evidence. He concedes that his current argument is “arguably not covered by the oral exception or the submitted instruction” but asks that we consider it under the plain error doctrine. Whether covered or not, there is no plain error. The court made clear that the jury could not consider the victim impact evidence in determining whether Miller was a principal in the first degree or in determining the existence of an aggravating factor. The jury certainly was free to use that evidence with respect to its consideration of mitigating factors and in the weighing process and, as the court instructed, to give it, in those contexts, whatever weight the jury felt it deserved.

J. Submission of Robbery as an Aggravating Circumstance

The State offered two aggravating circumstances in its quest for the death penalty — that the murder was committed in the course of a first degree sexual offense and that it was committed in the course of a robbery. The latter was based on the fact that Miller stole Shen’s purse and her wallet. Miller moved on two occasions to strike both aggravating factors, and on both occasions the court denied the motion and ultimately submitted both aggravating factors to the jury. Defense counsel argued to the jury that the robbery was an after thought — that the purse was taken after Shen was dead and that the killing was not, therefore, committed in the course of the robbery. That argument found favor with the jury which, as noted, found that the State had failed to prove that the murder was committed in the course of a robbery. The jury obviously had a different view about the sexual offense, as it found that the State had proved that the murder was committed in the course of that offense.

About five months after the verdicts were returned, this Court decided Metheny v. State, 359 Md. 576, 755 A.2d 1088 (2000), in which we confirmed that, when robbery is alleged as an aggravating circumstance in a death penalty case, the State must prove that the murder was committed with or in furtherance of the robbery — that the murder “must have been connected to the aggravating crime by more than mere coincidence, therefore eliminating from death penalty consideration a robbery committed as an afterthought.” Id. at 618, 755 A.2d at 1111. In a motion for new trial, heard after Metheny was filed, Miller again complained that the robbery offense should not have been submitted as an aggravator because there was no evidence that the murder occurred in connection with the robbery. The court denied the motion, and the issue is raised again in this appeal.

There is, of course, one huge difference between this case and Metheny. In Metheny, the only aggravating factor submitted to the jury was that the murder was committed in the commission of a robbery, and the death penalty returned by the jury thus rested solely on that aggravating circumstance. The only evidence in that case was that Metheney’s “conception of the design to rob [the victim] of her clothing and purse was not formed until after the murder” and we therefore held that “[b]eeause the intent to steal was formed after the murder, a rational trier of fact could not have found that [Metheney] murdered [the victim] while committing the robbery.” Id. at 631, 755 A.2d at 1118-19. Here, as noted, the jury dismissed the robbery as an aggravating factor. Methe-ny does not assist Miller.

Citing Brooks v. State, 299 Md. 146, 472 A.2d 981 (1984) and Sherman v. State, 288 Md. 636, 421 A.2d 80 (1980), Miller complains that the very submission of the robbery as an aggravator may have tainted the jury in finding that the murder was committed in the course of a first degree sexual offense, and that the death sentence should be annulled for that reason. He is wrong for two reasons. First, there was no direct evidence in this case of when Miller formed an intent to rob Shen. The jury obviously did not believe, beyond a reasonable doubt, that Miller took anything of value from Shen while she was still alive, but it could have so found. If the jury had credited Miller’s statements that Shen was alive when he left her in the car to die, the murder would, indeed, have been committed in the course of the robbery, as he took her purse and wallet when he left her in the car. In fact, he had possession of those items when he put Shen in the car and he never did anything to indicate an intent to return them to her.

Even if the court did err in submitting the robbery as an aggravating circumstance, Brooks and Sherman do not help Miller, as both are distinguishable. In Brooks, the defendant was charged with a variety of offenses, including armed robbery, conspiracy to commit armed robbery, and carrying a deadly weapon with intent to injure, all arising out of the murder of one Keith Bee during an armed robbery. At the close of the State’s case, the court found insufficient evidence to sustain the conspiracy charge and granted a judgment of acquittal on that count. At the prosecutor’s urging, the court later reconsidered that ruling and submitted all three counts to the jury, which convicted of all three. We reversed the conspiracy conviction on double jeopardy grounds — that once a judgment of acquittal had been entered by the court, the charge could not be revived and submitted to the jury. Because all three charges not only stemmed form the same incident but “were interrelated,” we could not declare a belief beyond a reasonable doubt that the wrongful submission of the conspiracy charge did not taint the jury’s consideration of the other charges as well, so we reversed them as well.

Unlike in Brooks, there was no inter-relationship here between the sexual offense and the robbery. The issue as to the robbery, as an aggravator, was whether the intent to steal Shen’s property was formed before or while Miller was strangling her and leaving her to die, or afterward. Did he take the purse and wallet as an afterthought, as he claimed, or had he intended to take the property earlier? The robbery had nothing whatever to do with the sexual offense, however. The issues as to that offense were (1) whether the sexual activity was consensual on Shen’s part, and (2) whether the murder occurred after it was completed. There is no inter-relationship whatever between the two offenses and thus no possibility that the jury’s unfavorable consideration of the robbery tainted its consideration of the sexual offense.

In Sherman, the defendant, a lawyer, was charged with five offenses arising from the unauthorized personal use of client funds. During the trial, the court entered judgments of acquittal on two of the counts, but then allowed the entire indictment, containing those two counts, to go to the jury room. That was in clear violation of a Rule of this Court that allowed charging documents to go to the jury only to the extent that they reflected charges upon which the jury was to deliberate: “dead” counts were not permitted to go to the jury. In reversing, we noted that, prior to the adoption of that rule, the judge had discretion as to what was allowed in the jury room and that the Court adopted the Rule because of concern over the potential prejudice arising from the submission of counts that had previously been eliminated. The decision to reverse was not a Constitutional one but rested entirely on the mandate of the Rule which, as a “precise rubric,” was to be read and followed. No “dead” counts were submitted to the jury in this case.

K. Sufficiency of Evidence of Sexual Offense

Miller contends that the evidence was legally insufficient to establish that the murder was committed in the commission of a first degree sexual offense. Under former Maryland Code, Art. 27, § 464 (and current Criminal Law Art. § 3-305), a person is guilty of a first degree sexual offense if the person engages in a “sexual act” with another by force or threat of force and without the consent of the other, and suffocates, strangles, or inflicts serious physical injury on the victim in the course of committing the crime. A sexual act was defined in Maryland Code, former Art. 27, § 461(e) (current Criminal Law Art. § 3-301(e)) as including cunnilingus, which was the act relied upon by the State to establish the offense and which falls within the colloquial term “oral sex.” Under former Art. 27, § 413(d)(10) (current Criminal Law Art. § 2-303(g)(x)), it is an aggravating factor, for purposes of the death penalty, if the defendant committed the murder while committing or attempting to commit a sexual offense in the first degree.

Miller admitted in his statement to the police and in some of the telephone calls overheard by police officers that he engaged in oral sex with Shen. He complains, however, that there was no corroboration of those statements and that there was no evidence that the oral sex was not consensual, as he maintained. He overlooks the medical examiner’s testimony regarding the various bruises and abrasions on Shen’s body, from which a reasonable inference can be drawn that she did, indeed, resist and that the sexual activity was both violent and non-consensual. He also brushes aside the testimony of Bobbitt that “he tried to seduce her. She said no. Threw her on the bed. He smacked her, ripped her top off, started sexually assaulting her.” Miller blithely notes that Bobbitt said nothing about oral sex. He did not need to: “sexually assaulting her” will do. The jury was not required to believe Miller’s far-fetched story that a 17-year-old young woman who had a boyfriend, who was lured to Miller’s apartment with an offer of a babysitting job, and who did not know Miller, would willingly consent to engage in sexual activity with him after being informed that the babysitting job was a ploy.

L. Failure to Instruct on Corroboration of Felony

Upon the wholly mistaken premise that the only evidence supporting the charge that he committed a first degree sexual offense came from his own statements to the police and overheard by the police, Miller argues that the court erred in failing to instruct the jury of the need for those statements to be corroborated. He acknowledges that he did not ask for such an instruction or object to the omission to give one, but insists that we address his complaint under the plain error doctrine. We find no plain error, and thus conclude that the complaint was waived. Even if we were to address the complaint, however, we would find no error.

Maryland follows the general rule that, as a matter of substantive law, a criminal conviction cannot rest solely on an uncorroborated confession. See Woods v. State, 315 Md. 591, 615-16, 556 A.2d 236, 248 (1989). We have made clear, however, that it is not necessary for the corroborating evidence to be “full and complete or that it establish the truth of the corpus delicti either beyond a reasonable doubt or by a preponderance of proof.” Cooper v. State, 220 Md. 183, 190, 152 A.2d 120, 124 (1959); Woods v. State, supra, 315 Md. at 616, 556 A.2d at 248. The supporting evidence, we have said, “may be small in amount” and is sufficient to establish the corpus delicti “if, when considered in connection with the confession or admission, it satisfies the trier of facts beyond a reasonable doubt that the offense charged was committed and that the accused committed it.” Bradbury v. State, 233 Md. 421, 424-25, 197 A.2d 126, 128 (1964); Woods v. State, 315 Md. at 616, 556 A.2d at 248. These precepts, which have been stated many times, were confirmed more recently in Ballard v. State, 333 Md. 567, 636 A.2d 474 (1994).

Miller’s admissions came in three forms — his oral and written statements to the police, the statements he made on the telephone that were overheard by the police, and the admission he made to Clarence Bobbitt. There was independent forensic evidence that he had ejaculated on Shen, which certainly established that sexual activity of some kind was committed, and there was medical evidence of contusions and abrasions on Shen’s head and much of her body, from which a reasonable inference could be drawn that the activity was violent and non-consensual. We made clear in Ballard that the corroborating evidence need only establish the corpus deliciti generally and need not establish “each component element of the corpus delicti.” 333 Md. at 577, 636 A.2d at 478, quoting from Ball v. State, 57 Md.App. 338, 351, 470 A.2d 361, 368 (1984), modified on other grounds sub nom. Wright v. State, 307 Md. 552, 515 A.2d 1157 (1986). It is not necessary, therefore, that the corroborating evidence establish the precise method by which the sexual offense was perpetrated. The corroborating evidence here more than sufficed, so there was not only no plain error material to Miller’s rights in the court’s failure to give an instruction that was never requested, but no error at all.

M. Impeachment of Defense Expert

At the sentencing proceeding, the defense presented Dr. Caroline Burry, a social worker from South Carolina, to testify regarding Miller’s family, social, and personal history. The prosecutor attempted to impeach her credibility in a number of ways. Miller complains here about two lines of questions.

Maryland Rule 4-343(d), which is part of the Rule governing sentencing proceedings in death penalty cases, provides that, upon request of the State after the defendant has been found guilty of murder in the first degree, the defendant must produce and permit the State to inspect and copy “all written reports made in connection with the action by each expert the defendant expects to call as a witness at the sentencing proceeding” but must furnish only “the substance of any such oral report or conclusion.” In this case, the State made such a request, but no written report was ever produced. It seemed evident from Dr. Burry’s testimony that she had made extensive written notes but had not actually made a written report, and she was questioned about that. She said that she was aware that, if she prepared a written report, the defense would have been required to turn it over to the prosecutor, and the prosecutor, in closing argument, suggested to the jury that, by not preparing a written report, the defense was “keeping it from us.”

Although no objection was made to that comment in closing argument, Miller now argues that it was impermissible even to pose the questions to Dr. Burry. He suggests that the decision not to prepare such a report was made by defense counsel, and not by Dr. Burry, and that it was unfair to use the absence of a report to impeach her credibility. We find nothing impermissible about the questions. For one thing, the record does not support Miller’s current suggestion that the decision not to prepare a written report was made by defense counsel. Dr. Burry testified that she was not asked to make a written report but that she was not told not to make such a report. It would appear from that testimony that the decision not to prepare a written report was, indeed, made by her. Who made the decision is unimportant in any event. It is fair and relevant for the State to inquire why the expert, who spent more than 70 hours on her investigation and who was fully aware of the disclosure requirement, would make extensive written notes to guide her testimony, including a written geneogram of Miller’s family tree, but fail to make a written report, and to suggest that the reason was to avoid having to disclose the report to the State.

The second line of questioning challenged by Miller concerned three people interviewed by Dr. Burry — Miller’s former girlfriend, Kim Ruhl, his cousin, Phil Gardner, and his Aunt Carol. The prosecutor asked Dr. Burry whether Ms. Ruhl appeared to have any physical impediment that would prohibit her from moving about freely, and, over objection, the witness said “no.” The same question was put, and, over objection, answered, with respect to Gardner and Aunt Carol. Miller treats these questions as raising the question of why those "witnesses could not have come to Maryland to testify and, as a result, as an attack on his ability to use hearsay statements as part of a social history report, which we declared permissible in Whittlesey v. State, 340 Md. 30, 665 A.2d 223 (1995).

We find no basis for such an argument. Statements made by those persons to Dr. Burry were admitted without objection, so there clearly was no conflict with Whittlesey. Even when a person’s extra-judicial statements are admissible under some exception to or relaxation of the hearsay and best evidence rules, it is fair to inquire whether there is any impediment to the person appearing in court and testifying directly, subject to cross-examination. Such an inquiry goes not to the admissibility of the statements but to the weight to be given to them.

N. Probable Cause for Miller’s Arrest

Claiming that, at the time of his arrest, the police had no reason to believe that Shen had been harmed in any way and thus no probable cause to believe that any felony had been committed, Miller avers that his warrantless arrest was unlawful. The State responds that the issue is not preserved for appellate review and, in any event, has no merit.

In an omnibus motion under Maryland Rule 4-252, Miller did ask, among other things, that all evidence seized from his person “at or about the time of the arrest” be suppressed because such evidence “was seized unlawfully, absent probable cause, and in violation of the United States Constitution, the Maryland Declaration of Rights and other legal rights of this Defendant.” As we recently pointed out in Denicolis v. State, 378 Md. 646, 837 A.2d 944 (2003), Maryland Rule 4-252(e) requires that motions in criminal cases state the ground upon which they are made and contain a statement of points and citation of authorities.

The purpose of that Rule, we added, is “to alert both the court and the prosecutor to the precise nature of the complaint, in order that the prosecutor have a fair opportunity to defend against it and that the court understand the issue before it.” Id. at 660, 837 A.2d at 952. As in Denieolis, this aspect of Miller’s omnibus motion gave no details supporting his bald contention that evidence was seized from him “at or about the time of the arrest” without probable cause. Nor, as was also the case in Denieolis, did Miller ever pursue the matter at the hearing on the motion. Although he pressed his complaint about evidence seized during a search of the apartment, pursuant to a warrant, he never mentioned, and thus effectively abandoned, any contention that the arrest itself, or any search incident to it, was without probable cause. If we had reached the issue, we would have found no merit in it.

Miller’s premise, that the police lacked any knowledge that a felony had been committed, is simply not accurate. By the time Miller was arrested, Shen had been missing for more than ten hours. As we have indicated, the police knew that she was supposed to meet Miller at about 9:30 that morning for a babysitting job, that she had promised to call or page her best friends, Lauren or Jessica, by 10:00 a.m., when she arrived at his apartment, that she had not called at any time during the day, and that she had failed to show up for work at 5:30 that evening. They knew that she was a responsible person with no history of drug or alcohol abuse and no reason to run away, and that it was most unusual for her not to keep in touch with her friends. They knew that Miller had a prior charge of false imprisonment in New York and they knew that his alibi — that he had been playing golf all afternoon — was probably not true, as they had seen his golf clubs in his closet. They had observed him acting in a suspicious and surreptitious manner when, in the dark, he approached the apartment in his car without lights on and, upon seeing Officer Arring-ton’s police car, backed away. When Lauren and Jessica positively identified him as the person they had seen at the pool, they had ample probable cause to believe that he was involved in Shen’s disappearance, and, given the circumstances, could reasonably believe that several different felonies may have been committed, ranging from a criminal homicide, to a first or second degree rape or sexual offense, to a kidnapping.

O. Sexual Offense — Evidentiary Sufficiency

Miller’s argument here is a repetition of the argument we addressed in Part K, above, and merits no further consideration.

P. Failure to Instruct on Corroboration of Sexual Offense

This argument is a repetition of the argument we addressed in Part L, above, and merits no further consideration.

Q. Instruction on Mitiyatiny Circumstances

As we indicated earlier, the court’s instructions at the sentencing proceeding focused, to a large extent on the verdict form that the jury had and would be required to complete. Section III of the form deals with mitigating circumstances. The court defined a mitigating circumstance as “anything about the Defendant or about the facts of this case that in fairness and in mercy may make the death sentence an inappropriate penalty for this Defendant.” The court instructed that “[s]o long as such factors are raised by the evidence, you may consider them as a mitigating factor,” but it expressly defined “evidence” for this purpose as having “a far broader meaning than just testimony and exhibits.” In that regard, it said that “mercy, compassion, sympathy or the appropriateness of a sentence other than death need not necessarily be by the testimony or exhibits.” The court repeated, when focusing on non-statutory factors, that the jury could consider evidence relating to the Defendant’s background “as well as relevant and material conduct of the Defendant up to, and including, this sentencing proceeding.”

Miller complains that instructing the jury that a mitigating factor must possess an evidentiary basis is inconsistent with the notion that anything can be a mitigating factor. That same argument was made and rejected by us in Conyers v. State, 354 Md. 132, 172-73, 729 A.2d 910, 931 (1999). The complaint there was that, throughout its instructions on mitigating factors, the court had used the phrase, “based on evidence.” We admonished judges to give precisely the instruction given in this case — that a mitigating factor is “anything relating to the defendant or the crime which causes [the jury] to believe that death may not be appropriate” — and to make clear that, as used in the sentencing form, the word “evidence” has “a far broader meaning than just testimony and exhibits.” Id. at 168, 729 A.2d at 929.

Although no objection had been made by Conyers to the instruction, we held that no plain error had been committed. We observed that he was focusing on a single line in the jury instructions rather than on the instructions as a whole. Noting that, as here, the jury had been told that it could consider anything presented during the sentencing proceeding, including “relevant and material conduct of the defendant up to and including this sentencing proceeding,” we held that the thoroughness of the court’s instructions “effectively precluded a juror from not considering a factor he or she perceived as mitigating because it was not ‘raised by the evidence.’ ” We perceive no error.

CONCLUSION

For the reasons noted, the verdicts and the prison sentences will be affirmed, the death sentence imposed on the murder conviction will be vacated, and the case will be remanded for a new sentencing proceeding on the murder conviction.

JUDGMENTS ENTERED ON CONVICTIONS FOR FIRST DEGREE SEXUAL OFFENSE, ROBBERY, AND FALSE IMPRISONMENT AFFIRMED; VERDICT ENTERED ON MURDER CONVICTION AFFIRMED; SENTENCE OF DEATH IMPOSED ON MURDER CONVICTION VACATED; CASE REMANDED TO CIRCUIT COURT FOR ALLEGANY COUNTY FOR NEW SENTENCING PROCEEDING ON THAT CONVICTION; COSTS TO BE PAID ONE-HALF BY APPELLANT, ONE-HALF BY BALTIMORE COUNTY.

1 . It appears that Shen was to meet Miller at the pool, rather than at his apartment, which heightened Lauren’s concern.

2 . The car was actually owned by Miller’s girlfriend, Isabella Sherman, who was also the lessee of the apartment. Miller and Sherman met and began a relationship in Rochester, New York. When she moved to Maryland to take a new job, Miller moved with her. Miller worked at a convenience store in Maryland for about a month but had been fired and was unemployed at the time relevant here. Ms. Sherman testified, and Miller admitted, that she allowed Miller to use her car while she was at work.

3 . As an interesting side note to Miller’s credibility, or lack thereof, in contrast to his suggestions in the telephone calls that Shen may have been alive when he left her in the car, he tells us in his brief, as a judicial admission, that ”[t]he disposal of her body necessarily occurred hours after the killing, because, as the Medical Examiner testified, lividity had become fixed in Shen's back at the time she was found lying face down. It is obvious, therefore, that she was left lying on her back for hours after she died, before appellant moved her to her car and disposed of her property.'’ (Emphasis added).

4 . The defendant has the right to have his/her sentence determined by a jury or by a judge. Miller chose to have the jury determine the sentence, so we shall refer to the sentencing body as the jury.

5 . TASC is an acronym for Treatment Alternatives to Street Crime. It is a program offered in Baltimore County that includes drug and alcohol counseling.

6 . Later proceedings against Bobbitt reveal that he had been accepted into the TASC program but had missed five meetings and, in October, 2001, had tested positive for cocaine.

7 . Judge Battaglia claims that her conclusion is not based on this one ambiguous response but rather on her determination that "Bobbitt responded affirmatively no less than five times to questions about a plea bargain related to the Miller case.” It is true that Bobbitt responded on several occasions to questions about a plea bargain, but on each occasion he specifically denied that there was any leniency promised for his testimony. Both he and the prosecutors consistently described the plea bargain as one for sentence: a plea of guilty in return for a 10 year sentence with five years suspended. The only response that could conceivably indicate otherwise is the one followed by a question mark. Judge Battaglia fails to note any other evidence in this regard, and for good reason: there is none.