# Petition — Nolan v. Maryland

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1971%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 966

## Text

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~ dupreme { Cou; uit, U,
FILED

IN THE 5; APR 199

SUPREME COURT OF THE UNITED scared MAAN Roux, 2e_ aul

OCTOBER TERM, 1979

NO. 79-1590

JOSEVH NOLAN, The Younger
Petitioner
vs.
STATE OF MARYLAND

Respondent

PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF SPECIAL APPEALS

OF MARYLAND

Harold I. Glaser
1504 Arlington Fed. Bldg.
Baltimore, Maryland 21201

Richard M. Karceski
1504 Arlington Fed. Bldg.
Baltimore, Maryland 21201

Attorneys for the Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO.

JOSEPH NOLAN, The Younger
Petitioner
vs.
STATE OF MARYLAND

Respondent

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT

Harold I. Glaser
1504 Arlington Fed. Bldg.
Baltimore, Maryland 21201

Richard M. Karceski

1504 Arlington Fed. Bldg.
Baltimore, Maryland 21201

Attorneys for the Petitioner

OS aa ea Se

ANS SO app

TABLE OF CONTENTS

PG se a ee sg ee sk 8 ke «2
RE a ae no a a
Pe an gh ee a ne
Constitutional Provisions Involved ... 2
ume. Oe Ue kk lk ee 8
ene Oe OE a Cm kk. 8
Reason for granting the Writ ......8
ee ae es eal i
Appendix A

Opinion of the Court of Special

Appeals of Maryland Aid
Appendix B

Mandate of Court of Special

Appeals of Maryland A.9
Appendix C

Order of Court of Appeals of
Maryland denying Petition for
a Writ of Certiorari A.10

SS ee en eee een

ii

8 eee ee | ere cee

~a ~_ Care anes

4 : ‘ -
-S conjecture. Under the circumstances, we do not believe the

i : . Pr si ao lant. was cnly fourteen years old. ; ,
him by Nolan's mothe nee apoell only to years oL | judge abused his discretion.
About six weeks before trial the attorney tiled a motion so withdraw ; -
3. Did tne Srial court err in adr teins Aearsay
bee] = 2 2A ast wacom satnncnenanen RI Sokal a a
as appellant's counsel, at the request of aopellant's mother. A 7 vestimony oi 2 ss-conssiratcr in ansence Of Sano at ant
paceoensent evisence or 2 sonscirac —$_—_—_—
learing was neld during which it was deveicoed shat the reason for the :
‘ 4 i+ ~ ~ _
mother's request was that she felt there had been 2 breakdown in P Ouring its case-in-chief, the State called Caivin Washington as
; ‘ = a witness <h , ; ;
communications between ner son and Mr. Kaplan. It became apoarent, itness chrough whom it was shown shat he visited Michael Evans on
; *
May l, 1978 and, over apoellant's obfecti

however, that this oreaxdown, if there was such in existence, was on, ne related a conversation

wetkex A.5
ne had with Evans in which he said Evans told him, "Me and Junie
Killed Sharon's little brother." (Junie was appellant's nickname. )

Washington was also shown a tennis shoe and shirt in Evans' backyard
and was told they belonged to she little boy and chat they were

going to give shem to the bey's mother for money. Appellant argues,

and the State concurs, that this constituted hearsay; “hey sarc

company at this point, nowever. The State argues that since ‘+ nad

established the existence of a conspiracy by independent evidence,
these statements fell within the co-conspirator exception to the

In Mason, Taylor, and Taylor v. State, 13 Md. App. 120,

nearsay rule.

305 A.2d 492 (1973), cert. denied, 269 Md. 763, 767, cert. denied,

416 U.S. 907, we said:

" ... the rule is that when the State seeks to

use statements against a co-consoirator mace

by another co-conspirator to a third oarty, it

must first demonstrate, through evidence aliunde,

the existence of a conspiracy, sees

4s that the State

T4. at 136-27. Our independent review persuades

had met its burden of establishing the existence or a consolracy.
There was testimony earlier in the trial shat on the day before the

incident appellant and Evans told Tony's sister they were going ‘o

xidnao a member of her family and that on May 1 appellant and Evans

asked the sister for the whereabouts of Tony. The sister also

that near dinnertime on May 1 aopellant called her

and admitted he and Evans nad killed Tony. Furthermore,

Mrs. Godfrey nad testified that asccellant called on May L and demanded

$300.00 for Tony's return. Finally, Tony's clothes were discovered

at =vans' ncme. We believe this evidence surficient so tndeoendencl;

establish a comsoiracy to murder, Kidmeao, ane extort on she part cf

Bre Maesinictihicn mc

XXEK A. 6
appellant and Evans.

Appellant argues alternatively that the consoiracy nad
terminated (assuming it existed) since Evans made the statement to
Washington after Tony was xidnaoped and xilled and thus the state-
ment was inadmissible.

We disagree with aopellant since the extortion

was ongoing; therefore, it is clear the entire consoiracy nad not

terminated when the statement

Md. 245, 157 A.2d 119 (1960),

was made. In Greenwald v. State, 221

arpeal dismissed, 2363 J.S. 721, the

—

Court of Appeals stated:

"

--- if the conspiracy contemplated she continucus
cooperation of she conspirators in the persvetration
of a series of cffenses ... 1t was in effect!a vart-
nership in criminal ourposes,' and continued until
the time or its abandonment or the final accomplish-

ment of its purposes."
Id. at 250-51. We find no error here.

C. Did the tri

al into
evicence

court err in admittins
an unsizonea z

In the course of the cross examination of aopellant ne was

1
shown an unsigned letter, which was addressed so Sharon, she victim's

sister. The State's Attorney attemoted to demonstrate ‘shat aopellant

Rad authored the letter, out he denied it. Although timely objecticn

was made, the witness was allowed to read the letter to che dury and

it was subsequently offered and admitted into evidence. Appellant

1. “Dear Sharon, how are you doing? Fine I noce. This ts a
good letter. 2 called your cousin's nouse looking for jou. Right
new Il am not going tc sut my aame Sut taxe a guess who it is. You
should know. well, I am doing fine. Tell your steofather I said
ruck him. Uy friend Jun want you tack, so write him at shis address.
401 E. saltcmore, Maryland, 21202. Mame, sorry. Can't
give you the name Sus take a guess. Section G, 3ed 52. It used to
be your dseyfriend's.”

MX A.7 | XXXXX A.3

argues that since the letter was unauthenticated and unsigned, it children to testify 1s within the sound discretion of the trial cours.
was inadmissible since it amounted to unsworn hearsey testimony, See Reckard v. State, 2 id. App. 312, 234 A.2d $30 (1967), cert.
citing Parker v. State, 12 Md. App. 611, 280 A.2d 29 (1971) and ' denied, 248 Md. 734 (1968). Nevertheless, appellant contends this
DiPietro v. State, 31 Md. App. 392, 356 A.2d 599 (1976). ‘The State . discretion was abused because there was no showing the witness
contends ‘the letter was authenticated by its contents, i.2., that demonstrated that she appreciated the obligation of an cath; indeed,
the letter must have veen written dy appellant Since 1 contained she was not even asked. We have reviewed the record and while ch
information that only appeilant would know, citing McCormick on witness did not know what would happen if she told a lie tn court,
Evidence, 2nd Ed., Sec. 225, 9. 552:(1972). We need not address the she clearly exhibited an understanding o? she difference between 2
question of whether an unsigned writing may se authenticated sy “he lie and the truth, anc the consequences of telling a lie, Le., she
alternate route of authentication of contents because we believe she would be punished. Furthermore, she promised to tell the truth in
admission of the letter to be merely cumulative in any event. C2. ner testimony. It is evident that the trial judge Zound, and we
Dorsey v, State, 276 Md. 538, 652-53, 350 A.2d 565 (1976). A reading cannot say he was wrong, that the witness understood she difference
of the letter demonstrates that the author was expressing animosity Be between telling the truth and telling a lie. We find no abuse of

to Sharon's stepfather, a fact which easily could have been gleaned discretion in the judge's finding that she was competent to testify.

rem previous testimony that the stepfather had forbidden Sharon See Williams v. State, 11 Md. App. 350, 274 A.2da 402 (1972) .

Peewee

from seeing aoosellant anymore. Further, the letter indicated that

"Jun" war.ted her back, certainly not evidence indicating complicity
JUDGMENTS AFFIRMED.

in the pending charges. In our view, even if the admission of the F B
4 SE PAD 3Y
letter was error - a ocint we do not decide - if was narmless. ee “ieee PALD 3Y

D. Did the trial court err ins
year old witness’

Angelina Howe, six years old and a sister of the victim, was ‘

offered as a witness oy “She State. Prior to seing sworn, “She State F

asked her a series of cuestions, cbviously designed “o determin x
whether the witness xnew She difference tetween Selling a lie an 7.
telling the truth, as well as xnowing she consequences ¢f telling a a

lie. Aopellant contends that because of certain resnonses made ay
the witness she axhidited 2 gquesticnadbie comorehension of the need

for testifying truthfully. aAppellant comcedes that She cacecity of

os Rens a
,

is we ut &

Court oi Sas

No. 171

JOSEPH NOLAN, THE YOUNGER

STATEMENT OF COSTS:
Ja CREAN CLERE Crininal Cours 9

Kecord 30.0

**.

Seenographer’s Costs 1,37%.0

ia Court of Specia! Appeals:

Filing Reeced on Appeal

Printine Brief for Appeliant

Reply Beiet bid contro aie ahs nts
Portion of Record Extract — Agpetlant
Printing Beiet for Cross-Appellee

Printing Brief for \ppelice es
Portion of Record Excract — Appellee
Printing Beicf foe Cross-.Anpellance

SYTHE OF MLARYLAND, Set:
lds hereby certify that the foregoing ts

Const cf Speeral dppeals.

A.93
ce e~Y SN I=

ries 2 ey Ey id tee Pe

A ba ia ee ors te, cad

. g « 2 , . .
A ae ae | ee ae
fa! Anseais af Maryicad

» September Term, 19 79

October 31, 1979 - Per Curiam filec.
Judgments affirmed. costs to de
paid oy sppellaat.

November 30, 197¢S - ‘andste issued.

f Baltisore

0
0

30.00
NOT SUPPLIED

40.90

truly taken from the records end proceedivias of the 5:

In testimony whereof, I hove hereunta set mv hand as Clerk ond fis

the seal af the

of

Court of Special Appeals, tits taiztiech g
November, Yt i Zap DR |
i) 4 #
Pde . e Fd
eS AR AON, aD Missed Lule ee
Bi tat — er ¢

Clerk of the Court of Special aippeais of Morylar:

is chawa us this Mandate are to be settled Detween counsel and NOL TP EtKUUtetE I riimcorace

oP 6 Le eetngantie sO! ~

SAIGON

2 ai sia,

a

A.10
: In the
JOSEPH NOLAN, the Younger
Court of Appeals
of Maryland
Vv. y

Petition Docket No. 374

September Term, 1979

STATE OF MARYLAND
‘i (No. 171, September Term, 1979

L Court of Special Appeais)

ORDER

Upon consideration of the petition for a writ of certiorari to the Court of

Special Appeals in the above entitled case, it is

ORDERED, by the Court of Appeals of Maryland, that the petition be, and

it is hereby, denied as there has been no showing that review by certiorari is desirable

and in the pubiic interest.

/3/ Marvin #. Smith
SeniLor@iiex Judge

Dates January 4 , 1980.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1971%3A1. Public record. Not legal advice.