Petition — Leuschner v. Maryland

Ellwood L. Leuschner, Sr. I In the Supreme Court of the

; ." . Petitioner - United States ‘

b P

Ve : 80-5084

I

State of Maryland : Docket No.

Respondant : RECEIVED

JUL 1 7 1988

PETITION FOR WRIT OF CERTIORARI

OFFICE OF THE CLERK

Comes now the Petitioner, Ellwood L. Leuschner, br SUPREME GQURT. US oda

in Forma Pauperis, and petitions this honorable court to issue a Writ of

Certiorari on the Court of Special Appeals of Maryland to review that

court's decision in Leuschner v. State, No. 945, September term 1979,

Filed: April 14, 1980 (Reported).

QUESTIONS PRESENTED

I. Did the trial court err in admitting into evidence

numerous inculpatory statements made by Petitioner.

(a) Implicitly ruling that they were voluntary,

(b) Ruling that they were made in compliance with Miranda,

(c) Overlooking the question of whether they were the

product of an illegal arrest.

II. Did the trial court err in sentencing Petitioner to

life without parole?

III. Did the trial court err in permitting Sgt. Griffith

to testify as to statements made by Petitioner?

| CONSTITUTIONAL PROVISIONS

United States Constitution:

Amendment V.

eeenor shall any person be subject for the

same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any

criminal case to be a witness against him-

self, nor be deprived of life, liberty, or

property, without due process of law;....

Amendment VI.

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial,by

an impartial jury...;to be confronted bynthe

witnesses against him...; and to have the

assistance of counsel for his defense.

~

1s

United States Constitution:

Amendment XIV.

e+enor shall any state deprive any person

of life, liberty, or property, without due

process of law; nor deny to any person

within its. jurisdiction the equal protection

of the laws. . ¢

Maryland Declaration of Rights:

Article 21

That in all criminal prosecutions, every man

hath a right to be informed of the accusation

against him...; to be allowed counsel; to be

confronted with the witnesses against him...;

and to a speedy trial by an impartial jury.

Article 22

That no man ought to be compelled to give

evidence against himself in a criminal case.

Article 23

That no man ought to be taken or imprisoned

~--or deprived of his life, liberty, or |

property, but by the judgement of his peers,

or by the law of the land.

Maryland Annotated Code, Article 27, Sec. 643B:

Section 643B. Mandatory sentence for crimes of violence.

(a) "Crime of Violence"--As used in this section, the

term "crime of violence" means abduction, arson, kid-

napping, manslagghter, except involuntery manslaughter:

mayhem, murder, rape, robbery, sexual offenses in the

first degree, sexual offenses in the second degree, use

of a handgun in the commission of a felony or other crime

of violence, an attempt to commit any of the aforesaid

offenses, assualt with intent to murder, and assualt with

intent to rape.

The term "correctional institution" includes Patuxent

Institution and a local or regional jail or detention

center.

(bo) Mandatory life sentence--Any person who has served

three seperate terms of confinement in a correctional

institution as a result of three seperate convictions

of any crime of violence shall be sentenced, on being

convicted a fourth time of a crime of violence, to life

imprisonment without possibility of parole. Regardless

of any other law to the contrary, the provisions of this

section are mandatory.

(c) Third conviction of crime of violence--Any person who

(1) has been convicted on two seperate eccasions of a crime

of violence where the convictions do not arise from a single

incident, and (2) has served at least one term of confine-

ment in a correctional institution as a result of a con-

viction of a crime of violence, shall be sentenced, on being

convicted a third time of a crime of violence, to imprison-

ment for the term allowed by law, but, in any event, not

less than 25 years. Neither the sentence nor any part of it

may be suspended, and the person shall not be eligible for

i

parole except in accordance with the provisions of

Article 31B, Section ll.

(d) Compliance with Maryland Rules--If the State intends

to proceed against a person as a subsequent offender

under this section, it shall comply with the procedures

set forth in the Maryland Rules for the indictment and

trial of a subsequent offender.

Maryland Annotated Code, Article 41, Section 28A:

The arrest of a person may be lawfully made by any

peace officer without a warrant upon reasonable

information that the accused stands charged in the

courts of a state with a crime punishable by death

or imprisonment for a term exceeding one year, but

when so arrested the accused must be taken before a

judge or district court commissioner with all prac-

ticable speed and compliant made against him under

oath setting forth the ground for arrest as in the

preceeding section (Section 28) and therefore his

answer shall be heard as if he had been arrested

on a warrant.

STATEMENT OF THE CASE

Petitioner, Ellwood L. Leuschner, Sr., was charged by indictment on

November 16, 1977, in Wicomico+County with murder, forcible kidnapping,

fraudulent kidnapping, sodomy, and commission of a first degree sex

offense, all pertaining to Troy William Krause. Petitioner was also

charged in that indictment with certain offenses pertaining to William

Russell Marine, Jr. To all of the charges, Petitioner entered pleas of not

guilty and not guilty by reason of insanity. The case was removed to

Garrett County on December 29, 1977, and on June 19, 1978, the charges

relating to William Russell Marine, Jr., were severed from those relating

to Troy William Krause. Trial proceeded on the former charges in Garrett

County from June 19 through 26, 1978. At the conclusion of those pro-

ceedings, the remaining charges were removed to Washington County on

August 22, 1978.

On June 18, 19, 20, 21, 1979, Petitioner was tried by a jury in the

Circuit Court for Washington County (the Honorable John P. Corderman

presiding) on the charges related to Troy Krause. The jury returned guilty

verdicts on four charges (acquitting on the charge of forcible kidnapping)

and found that Petitioner was sane at the time od the acts alleged. The

court merged all of the convictions for purposes of sentencing, and imposex

upon Petitioner a sentence of life imprisonment without possibility of

parole, pursuant to Maryland Annotated Code Art. 27, Section 643B.

On June 28, 1979, appeal to the Special Court of Appeals of Maryland

was noted.

U.

STATEMENT OF FACTS

On four successive days while he was in custody, Petitioner made

numerous verbal inculpatory statements which were introduced at his

trial. Additionally, Petitioner made one statement (written) that was

not introduced at trial. :

The State!s case on the motion was presented mainly through the

testimony of Maryland State Police troopers and Betty Larmore, girlfriend

of Petitioner at the time of his arrest.

October 29, 1977 (Saturday)

Rusty Marine, a ten year old boy, disappeared from the trailer park

in which he resided, (Ta. 23-24)7 In investigating his disappearance, the

police learned that Petitioner, who lived with Betty Larmore in the same

trailer park, had been the last one to see him alive. (Ta. 25)

October 30, 1977 (Sunday)

In the early morning hours, Sgt. Luce interviewed Petitioner who

acknowledged that he had seen Rusty. (Ta. 28-30). Later that day, through

the NCIC computer, the police learned that Petitioner was wanted in

California for a parole violation. At 12:30 P.M. Luce and Sgt. Chaffey

arrested Petitioner on the fugitive charge. (Ta. 31-32). He was read his

Miranda rights, taken to the barracks, and at 1:15 P.M. was readvised of

his Miranda rights, and refused to execute a waiver of them. (Ta. 33).

Petitioner requested an attorney on the fugitive charges. Nothing

was done about that request; instead Petitioner was routinely processed

and, at 2:00 P.M. Officers Luce and Chaffey questioned him about’ Rusty

Marine. The officers stated that Petitioner again requested counsel for

the fugitive charges, and indicated that he did not need an attorney for

the purpose of being questioned about Marine. (Ta. 34). He was questioned

for two hours as to his activities on the 29th, and although he made no

incriminating statements, there were "discrepancies" in his story.(Ta 35)

During this time, at 2:30 P.M., Betty Larmore came in. Petitioner

told her to get him an attorney, which she said she could not do because

it was Sunday. Questioning continued until 4:00 P.M. (Ta. 36-37); at its

conclusion, Luce bought Petitioner a pack of cigarettes. (Ta. 45).

From 4:00 to 6:00 or 6:30 P.M., Petitioner was given a sandwich and

was questioned by Lt. Keating and Trooper Hall. (Ta. 87,244).

1. Transcript reference "(Ta)" are to the volume dated June 18, 19,

1979, which consists entirely of the hearing on the motion to suppress.

‘

E°

sy

At the outset, Hall again advised him of his Miranda rights.(Ta.87)in

regards to the Marine issue. It was noted in Hall's report that:

"Petitioner...stated several times that he

wanted to talk to someone that he could

trust and that he needed a lawyer. He was

advised he could contact a private lawyer,

or, if hé was formally charged, one would

be afforded him by the Public Defenders

office." (Ta. 245-46)

According to Keating, an hour into the questioning, he gave Petitione

a telephone and directory, but Petitioner made no attempt to use them.

(Ta. 88-89). Finally, he called Betty; when she arrived, he again asked

her to get an attorney. (Ta. 89-90). Keating did not recall her response,

but she left and the questioning continued. (Ta. 90). The session included

some general conversation. (Ta. 93), and again Petitioner did not make any

incriminating statements. (ta. 92).

‘Next, from 7:00 to 7:30 P.M., Petitioner was again questioned by Sgt.

Luce and Hall. (Ta. 46). From 7:30 to 8:30 P.M., he was questioned by

Trooper Hornung, Bacon, and Pollack. (Ta. 47). During this period, Hornung

asked Petitioner to take a polygraph test, which he refused to do without

consulting an attorney. (Ta. 179). From 8:30 to 9:00, Petitioner was again

questioned by Luce and Hall. (Ta. 46), and from 9:00 to 9:30, Hornung

questioned him. (Ta. 180). Thereafter, Petitioner was taken before a

district court commissioner for charging on the fugitive charge.(Ta. 132)

He was held without bond and read his rights. Petitioner requested

a public defender form, but did not request that a lawyer at that time be

present. (Ta. 134-35). He spent the night in the county jail.

October 31, 1977 (Monday)

The next morning at around 9:00 a.m., Petitioner was brought back to

the barracks and was advised of his rights by Keating and Hall, who again

proceeded to question him. No request for an attorney was made at this

time. (Ta. 94-95). Early in the afternoon, Petitioner was taken to the

area where the boy's body was found. After viewing the body, Petitioner

was taken back to the barracks and on the way, according to the police, he

requested that Betty be brought to the barracks. She arrived there shortly

after they did. (Ta. 98). When Betty came into the room, Petitioner told

her that "he had taken Rusty"; Hall and Keating were present. Petitioner

spoke for five minutes, then signed a waiver of his rights at 4:00 P.M.

At 7:30 P.M. that night, Keating began to question Petitioner about

Troy Krause. (Ta. 101). He denied any knowledge of the boy and asked to sei

Betty. While she was there, in Keating's presence, Petitioner said words

to the effect of "I took him, too" and described what happened.(Ta.103-O4).

| a

lo.

Petitioner stated that he did not know if the boy was dead or alive

and agreed to help the police locate the body. (Ta. 103-04). They found

nothing in the subsequent search and Petitioner was returned to the jail

at 11:00 p.m. to the custody of Luce and Chaffey. (Ta. 59). Petitioner was

charged with the murder of Rusty Marine at 12:10 a.m. November 1, and was

taken before district court commissioner Eliot, who declined to set bond

(Ta. 59-60). ; :

November 1, 1977 (Tuesday)

The next morning, at 8:00 a.m., Officers Keating and Lewis, along: with

Betty Jean, picked up Petitioner at the jail ana continued to search for

the body of Troy Krause, again with no success. (Ta. 105-06). The day befor

Keating asked Petitioner if he would take a polygraph test, and Petitioner

decided on the lst that he would like to take the test to see if it would

assist him and help, and he wanted to locate the missing boy. (Ta. 106).

Trooper Harold Gray joined the investigation that morning and read the

Miranda warnings to’ Petitioner. (Ta. 196-97). They continued to search, and

later in the day, he and Lewis took Petitioner to Easton for the polygraph

conducted by Sgt. Griffith. (Ta. 201). At 4:05 p.m., Petitioner was taken

to District court where Judge Dallas presided over a bond review. Judge

Dallas advised Petitioner of his rights and "advised him not to talk to

the police or anyone about this." (Ta. 202).

November 2, 1977 (Wednesday)

Petitioner was taken back to Easton to continue the polygraph where

he advised Sgt. Griffith that "he wished to clear this matter up; he wished

to help locate the body of Troy Krause." (Ta. 242). Petitioner again tried

during the interview to recall where he had buried the body. (Ta.204).

They left Easton around 8:30 p.m., and on the way home, Petitioner

told Betty where he had buried the boy. Betty relayed this information to

Trooper Bacon. (Ta. 218).

November 3, 1977 (Thursday)

Officers Bacon and Gray went to the location given to Betty on the

Zimmerman farm. Petitioner was brought out by Hall, Tunney, and Hornung.

(Ta. 206). At 10:30 that morning the body was found. At 2:30 p/m. an arrest

warrant was obtained by Sgt. Luce and served on Petitioner in the presence

of his attorney, Patrick Rogan. Shortly thereafter, he was presented to

District court Judge Truitt. (Ta. 64).

Betty Larmore's testimony substantially corroborated that of the State

police as to the main events, with some additional detail. As to Petitioner

initial request for an attorney on October 30, she stated that Petitioner

told her that "(the police) said that they would get him a lawyer if he tok

i" age

. BF

es. ¢

| a lie detector test." (Ta. 163). She asked Petitioner about taking a lie

detector test, and he said, "No, they got me in trouble once, I'm not

taking one...get me a lawyer and them I'll take one. (Ta. 161, 163). He

asked her to get him a lawyer several times. She attempted to get one, but

was unable to do so. te

She stated that the had asked her to help them to get Petitioner to

confess and to take a lie detector test. (Ta. 167-68).

Petitioner's testimony contradicted much of the State's case, but his

testimony was discounted as not being credible. (Ta. 359-60,363).

TRIAL

Troy Krause's family, residents of the trailer park, testified as to

his disappearance on July 28, 1977. Diane Krause, his mother said he left

home in the morning on a bicycle to go to the YMCA. (Tb. 12)* When he was

not home by late afternoon, they called the police and started looking for

him. (Tb. 15). At midnight, his brother Michael found the bicycle 200 to

300 yards from the house, behind a mound of dirt. (Tb. 22).

Trooper Phillip Andrews and Sgt. Chaffey testified as to the initial

investigation, which included numerous foot searches during a two week

period. (Tb. 38)., and continued investigation up until October 29, which

produced no information as to the boy's disappeamance.

Joseph Zimmerman, Petitioner's brother-in-law, testified that Petition

had lived and worked on his farm from February 1975 to February 1877, and,

thereafter, went to work and live elsewhere., though he maintained access

to Zimmerman's pickup truck. (Tb. 40-42) Zivimerman could not recall if the

Petitioner had used the truck on July 28, 1977.

Betty Larmore and Petitioner began to live together in her sister's

house in July of 1977. (Tb. 44). In late July, they went to the trailer

park to inquire about renting a trailer. (Tb. 45). The next day, she went

to work and Petitioner borrowed her car to go back to the trailer park

again. (Tb. 46-47).

On October 31, 1977, she had gone to the State Police barracks, where

Petitioner was in custody. She spoke with him and he told her that he had

picked up Troy in the truck, had taken him into the woods, twisted his tee

shirt around his neck and left him there. (Tb. 49-51). On November 2, the

Petitioner told her that he had suddenly remembered where he had buried

the boy, and told her to report that to Trooper Bacon. (Tb. 55).

PP -

2. Transcript references "(Tb)" are to the transcript dated June 19,

20, 21, 1979.

S.

Trooper Hornung, Lt. Keating, Sgt. Griffith, Trooper Bacon, and

Trooper Gray testified substantially as to the same series of events as had

been presented on the motion, omitting references to the. Rusty Marine

incident. (Tb. 60-98). Each one testified as to specific inculpatory

statements made by Petitioner at various times. Lt. Keating testified as

to Petitioner's initial confession on October 31, which was substantially

similar to the orie testified to by Betty, with the addition that he had had

sex with Troy before leaving him in the woods. (Tb. 69070).

Sgt. Griffith testified as to his polygraph interview with Petitioner

on November 1, wherein Petitioner again confessed several times to having

taken Troy. (Tb. 76-78). Trooper Bacon testified that on November 3, the

Petitioner pointed out the location where the boy's body was found on the

Zimmerman farm. (Tb. 84-85). Trooper Gray testified as to his interview

with Petitioner on November 1 and 2 during which inculpatory statements

were made. (Tb. 89-92).

Hormez Guard, Assistant State Medical Examiner, testified as to the

autopsy which he performed on the body found. (Tb. 109-11). Dr. Guard

determined that the cause of death was strangulation, and noted that there

was evidence of stab wounds, and that the condition of the anus indicated

that it had been forcibly opened. (Tb. 112-13).

Ralph Brumley, owner of the trailer park, testified from his records

that Betty Larmore had visited the trailer park on July 27, 1977 (Tb. 131).

At the conclusion of the State's case, a motion for judgement of

acquittal was made and denied. (Tb. 137-38).

ISSU INSANI

The defense called Dr. John Henderson, a forensic psychiatrist, who

had examined Petitioner on two occasions, in December 1977 and May 1978,

for a total of eight and a half hours. A psychiatric history was taken and

a mental status exam was performed. (Tb. 145-46). Additionally, Henderson

spent 40 to 50 hours reading records about Petitioner. (Tb. 159-66). His

diagnosis was that Petitioner was suffering from a mental disorder and was

insane at the time of the offenses. (Tb. 181).

Dr. William N. Fitzpatrick, a consultaht forensic psychaitrist at

Perkins State Hospital, was called by the State. (Tb. 222). Dr. Fitzpatrick

was not present at the medical conferance that evaluated Petitioner(Tb.225)

He interviewed Petitioner for one hour in February, and talked with

the psychologist and social worker there as to their workup on Petitioner.

(Tb. 226). His opinion was that Petitioner was sane at the time that the

crimes were comitted. (Tb. 233).

q.

CITATIONS

akonom v. State, 40 Md. App. 676 (1978)

Ashcraft v. Tennessee, 332 U.S. 143 (1944)

Bram v. United States, 168 U.S. 532 (1897)

Brewer v. Williams, 430 U.S. 387 (1977)

Brookhart v. Janis, 384 U.S. 1, 16 L.Ed. 2d. 286, 292 (1979)

Brown v. Illinois, 422 U.S. 590 (1975)

Brown v. State, 10 Md. App. 462, 472-73, (1970)

Canal Zone v. Gomez, 566 F. 2d. 1289, 1291 (5th Cir. 1978)

Clewis v. Texas, 386 U.S. 207, 87 S.Ct. 1338, 18 L.Ed.2d. 422 (1967)

Doyle v. Ohio, 426 U.S. 610, 617-18 (1976)

Gavazos v. State, 172 S.W. 2d. 348 (Texas 1943)

Harris v. South Carolina, 338 U.S. 68 (1949)

Hill v. State, 218 Md..120 (1958)

Hoffa v. United States, 385 U.S. 293 (1966)

Jackson v. Denno, 378 U.S. 368, 376 (1964)

Johnson v. State, 31 Md. App. 303, 355A. 2d. 504 (1976)

Keller v. State, 2 Md. App. 623, 236 A. 2d. 313 (1967)

Kirby v. Illinois, 406 U.S. 682, 689 (1972)

Leyra v. Denno, 347 U.S. 556 (1954)

Merritt v. State, 221 Md. 118 (1959)

Michigan v. Mosley, 423 U.S. 96 (1975)

Miller v. Pate, 386 U.S. 1, 17 L.Ed. 2d. 690, 87 S.Ct. 785 (1967)

Mincey v. Arizona, 96 S.Ct. 2408, 2416 (1978)

Miranda v. Arizona, 384 U.S. 436 (1966)

North Carolina v. Butler, _U.S.__, 60 L.Ed. 2d. 286, 292 (1979)

Payne v. Arkansas, 356 U.S. 560, (1958)

Smith v, State, 20 Md. App. 577, 587 (1974)

State v. Crittenden, 36 So. 2d. 645 (La. 1948)

State v. Fabritz, 276 Md. 416, 421-22, 348 A. 2d. 275 (1975)

State v. Kidd, 281 Md. 32, 375 A. 2d. 1105 (1977)

State v. Peterson, 75 A. 2d. 368 (Maine 1960)

Taylor v. State, 20 Md. App. 404 (1974)

Turner v. Pennsylvania, 338 U.S. 62, (1949)

Walker v. State, 12 Md. App. 684,694 (1971)

Ward v. Texas, 316 U.S. 547 (1942)

Watts v. Indiana, 338 U.S. 69 (1949)

Williams v. State, 220 Md. 180 (1959)

Williams v. State, 22 So. 2d. 821 (Fla. 1945)

Wong Sun v. United States, 3571 U.S.471,83 S,Ct.407, 9 L.Ed. 2d.442 (1966)

lo.

United States v. Cella, 568 F. 2d. 1266 (9th Cir. 1977)

United States v. Fannon, 556 F.2d. 961, 965 (9th Cir. 1977)

United States v. Greer, 566 F.2d. 472, 473-74(5th Cir.)425 U.S.1069 (1978)

United States v. Nash, 563 F.2d. 1166, 1169 (5th Cir. 1977)

United States v. Provencio, 554 F.2d. 361 (9th Cir. 1977)

United States v. Womack, phe F. 2d. 1047, 1051 (9th Cir. 1976)

Maryland Annotated Code

Article 41, Section 28, 28A

Article 27, Section 643B

Maryland District Rule 723 (a)

Ul,

PRELIMINARY STATEMENT

The most important question that becomes essential for this court to

answer is one concerned with (a) and (b) of the first question presented

by Petitioner. This question may be considered as one dealing with the due

process and equal protection clauses of the Constitution in part, and the

‘violations of other Constitutional issues, the Declaration of Rights of

Maryland, and Maryland's laws and procedures.

The question may be considered as one similar to whether or not tainte

evidence may be used at trial to help convict, or whether or not perjured

testimony may be used at trial simply because the province of belief is

that of the jury, or whether or not the court might disregard pertainant

facts that were not brought out at the trial.

Petitioner submits that the court may well feel that it should not be

asked to answer issues or questions that have already been answered by the

court in previous decisions, however, where there is evidence, very strong

evidence, that the State and the lower court have not accepted decisions

or rulings of this court in their proper prospective, or applied those

decisions and rulings fairly and fully, then, in the interest of justice,

the court must consider ruling on these questions even though they should

have been ruled on adequately by the lower courts. Surely, this court will

not allow any court to disregard the Constitution and the decisions and

rulings from this court that interpret Constitutional judgements, mandates,

and protections for the people of this country and the courts thereof.

The question is whether or not the lower court may use tainted and

predjudicial circumstances for a finding of voluntariness or waiver by the

actions and words of a suspect. Further, where there is clear evidence of

fact in the records at the court's disposal that supports contentions of

tainted circumstances and predjudice, can the court justly disregard these

facts with rulings that are contrary to the facts. And, additionally, can

the court disregard factual evidence of perjury and testimonies that are

contradictory and untruthful, as a basis for any just ruling or decision?

Petitioner contends that the eighth amendment of the Constitution of

the United States makes it quite clear that cruel and unusual punishment

may not be inflicted upon anyone in this country, and, where there is a

clear, factual basis of evidence that indicates that anyone is suffering

such punishment through illegal incarceration, this court is obligated to

resolve these issues in the interest of justice, particularly where they

are crucial issues. United States v. Provencio, 554 i. 2d. 361 (9th Cir.

1977). Cf. Brookhart v. Janis, 384 U.S. 1, 16 L.Ed. 2d. 314, 86 S.Ct. 1245

(1966). 7

Fa!

LQ. :

Petitioner contends that the lower court reached it's findings of

voluntariness and waiver by using tainted, predjudicial circumstances, and

the contradictory, untruthful testimonies of the State's witnesses as will

be shown in the pages following. It will be noted that the lower court has

made an issue of the Petitioner's intelligence, knowledge of law, and his

rights, to such an extent that the lower court makes it clear that those

illegal actions by the police, and their failure to obey the law, may be

excused simply because the Petitioner knows the law.

However, the primary concern of this covrt, at this time, must be only

whether or not the Petitioner has presented adequate questions or points of

law that merit certiorari. Petitioner has been unable to find cases where

a court has used tainted and predjudicial circumstances for a finding that

these same circumstances make something legal and acceptable to the law.

While it may be true that this court will not rule on State laws ora

Constitution of a State, it could not justly fail to resolve some issue

that has a Constitutional basis, and Petitioner contends that the use of

such circumstances, tainted and predjudicial, is against the mandates of

the United States Constitution. Petitioner contends that where a lower

court disregards illegal actions by the police, or fails to uphold the

decisions and rulings of this court which reflect the true mandates of the

Constitutio: the court has then interpreted points of law wrongly, and it

is this certiorari process that sets the points of law in the correct and

rightful perspective.

If the State, by the courts therein or by the police therein, fail to

uphold the laws of that State and the mandates of the Constitution of the

United States, there must surely be adequate points of law being violated

to support the issuance of a writ of certiorari. However, should the court

feel that these issues may be resolved by further appeals in other lower

courts, the unusual and unique action of the lower court in the instant

case must be considered as a firm basis for certiorari.

In the following pages, Petitioner will show by clear evidence that

his Constitutional rights were violated; that the State failed to uphold

it's own laws, rules, and procedures; that the police in the instant case

failed to obey the laws of the State and the Constitution; that the lower

court failed to resolve crucial issues before using circumstances to make

their ruling and decision; and, that by virtue of these actions and the

action of the lower court, Petitioner suffers cruel and unusual punishment

in violation of the Constitution and the Declaration of Rights of the State

of Maryland. |

’

ee

3.

In order to more fully outline the seeming disregard of the pertainant

facts available to the lower court, in the records, and the erroneous and

blind acceptance of testimony from the witnesses, who, by their own words

as recorded in the records, contradict, and present false statements from

which the lower court derived their findings, it is necessary to present,

as arguement, the opinion of the lower court in pertainant parts. In such

a manner, Petitioner feels that this court will be more apt to adduce the

contentions of the Petitioner. Further, in such a manner, this court might

more easily discern the misinterpretations of the lower court; the illegal

actions of the police; the seeming disregard of State procedures and laws;

and the violations of the Constitution and Petitioner's rights.

Because of the length of the lower court's slip opinion, this will

require a lengthy petition and the Petitioner begs the courts indulgence,

for it is necessary, as the court might see, that this petition be done in

such a manner in order that certiorari may be considered because of these

views and opinions presented by the lower court.

It must be noted that Arguement I, as presented herein, will contain

the evidence that supports Petitioner's contentions that there was no

voluntariness or waiver demonstrated by Petitioner's actions or words, and,

in fact, will show conclusively that Petitioner asserted his rights often,

and in such a manner that could not be construed as waiver.

Additionally, Petitioner contends that, as waiver and voluntariness

may be adduced from the circumstances surrounding the interrogation and

statements, North ina v. Butler, _U.S. _, 60 L.Ed. 2d. 285, 292,

(1979), it may be assured that other crucial factors may be considered

solely from the record and the facts therein. Petitioner refers here to the

fundamental right of “adequate counsel for his defense" as mandated by the

Constitution and Declaration of Rights of Maryland. From the record, slip

opinion, it may be noted that Petitioner had to present to the court, on

his own, certain objections, among which was "Inadequate Counsel", and the

lower court refused to rule on these issues because they were improper.

In the State of Maryland, "competency of counsel" is a question that

is left to post conviction. However, Petitioner contends that, where there

is such strong evidence in support of "inadequate counsel" in the record,it

may be ruled upon on the basis of the facts present. Petitioner raises the

question here because of the fact that the lower court has refused to rule

on pertainant questions and points of law that Petitioner was forced to

put before the court himself, as his lawyer refused to make the objections.

It would certainly be a denial of due process, equal protection, and

right to adequate counsel, where the court refuses to answer such issues.

4, ’

In the instant case, predjudiced may be discerned quite easily where

an issue, such as “illegal arrest", which is supported by sufficient facts

for a determination of such, is set aside by the lower court because of no

objection or proper notification by counsel, particularly where the issue

has such a crucial bearing on the ruling of the lower court that there was

voluntariness and waiver adduced from the circumstances that would not have

occured but for the disregard of the illegal arrest.

That defense counsel may have elected to stress the insanity issue is

no excuse for failing to raise properly those issues that are definately

in the best interests of the client. Where there is not one, but two, issue

of an illegal arrest; evidence of improper testimony; evidence of violation

of State laws and procedures; and evidence of violations of Petitioner's

rights, that were not raised by counsel, there should be some consideration

given to acknowledging "inadequate counsel" from the record, and the issues

which reflect upon the circumstances that the lower court used to reach its

decision should, in the interest of justice, been resolved before there was

a determination that the circumstances showed voluntariness and waiver.

The court would not condone a finding of guilty without the benefit

of first resolving all of the issues at trial, yet, in the same context,

the court maintains that it may find a finding of voluntariness and waiver

from the circumstances, without first resolving those issues which support

the contention that those same circumstances are, in fact, tainted.

Petitioner is of the opinion that such points of law, a refusal by the

court to resolve crucial issues that reflect upon it's decision; refusal to

consider an issue such as "inadequate counsel", where a determination may

be made from the facts in the record, which also reflects upon the court's

decision, are sufficient grounds for certiorari to be granted.

The mere fact that there are thirteen issues under contention by the

Petitioner, and the court sets a majority of them aside because they were

either not raised by counsel, or were raised by Petitioner improperly, is

certainly indicitive of “inadequate counsel", and for the court to refuse

to consider their reflection on it's ruling, or to refuse to consider this

denial of the right to adequate counsel which reflects upon the entire

trial of Petitioner, from which records the lower court has reached it's

decision, is certainly contrary to the mandates of the Constitution.

Petitioner presents this preliminary statement to the court so that it

may understand better the contention that the circumstances, used by the

lower court for it's decision, are tainted to such a degree that it is not

reasonable, fair, or just, to use them to prove anything legal, or to show

voluntariness or waiver. ;

iS.

I. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE

NUMEROUS INCULPATORY STATEMENTS OF PETITIONER.

(a) Implicitly ruling that they were voluntary,

(b) Ruling that they were made in compliance

with Miranda,

(c) Overlooking the question of whether they

were the product of an illegal arrest.

The lower court, Special Court of Appeals of Maryland, maintains that

under North Carolina v. Butler, Supra, it may show that voluntariness and

waiver were inferred by strong evidence of the circumstances surrounding

the interrogation (Slip Op. 7), and Petitioner concedes that this indeed

is made quite clear by the court in Butler, Supra. And it is quite clear

also that such a determination must be made on "the particular facts and

circumstances surrounding that case, including the background, experience,

and conduct of the accused." Id. at 293.

The lower court also maintains that under ‘/lalker v. State, 12 Md. App.

684, 694 (1971), it is not restricted in it's search for evidence that may

support a finding of voluntariness and waiver, and, because the court may

range beyond the record of the case to do so, Petitioner contends that he

may bring forth evidence to support his contentions, not from far afield

but from the records of his first trial which reflects upon the evidence

that the lower court has used for it's findings and decision(Slip Op. 31).

Petitioner will endeavor to show, by sufficient evidence, that there

were events preceeding these circumstances that tainted them beyond use as

indicitive of anything except illegal conduct by the police. To that end,

Petitioner would hope that this court would consider the following cases:

United States v. Provencio, Supra, and Brookhart v. Janis, Supra, for the

issues brought forth are of a crucial nature and reflect upon the taint on

the circumstances in question.

The first of these preceeding events is the warrantless arrest of the

Petitioner in his home, and any doubt as to their being such an arrest is

answered by the State in it's brief to the Special Court of Appeals.

(Br. 17) After Appellant's warrantless arrest as a California parole

violator." See also (Tc. 18, 30)? referring to arrest of Petitioner.

In the recent cases decided by this court, Payton v. New York, and

Riddick v. New York, there was a ruling that the police could not make a

warrantless arrest in the home where there has been no consent to enter,

otherwise the arrest was unconstitutional. As in these cases, the instant

case has similar points, such as, the police had ample time to obtain a

warrant for Petitioner's arrest; there were no exigent circumstances; and,

3. Transcript reference "(Tc)" on the motion, first trial.

oa

, oa

ll.

there was no consent given to enter the trailer.

When the police came to Petitioner's trailer, they knocked on the

door and demanded entrance by the authority of the law, stating, "open up,

this is the police." This was done twice. When Petitioner opened the door,

Sgt. Luce stated that he had a warrant for Petitioner's arrest for parole

violation from California. Petitioner let them in the door, which opens on

the livingroom, and once inside, Sgt. Chaffey read Petitioner the Miranda

warnings (Tc. 30). However, because Petitioner has no more than his own

word as to what the police said and did, the court must take some things

into consideration.

First, in as much as the lower court makes so much of the fact that

the Petitioner knows the law and his rights, it may be assumed that he

would ask the police what they wanted before letting them into his home.

Second, knowing the law, as it was then, Petitioner may well have let

the police into his home because cf an awareness of the rule that, after

an announcement of authority and purpose, the police,makéng an arrest, may

enter with the use of force,

Third, if the procedure in Maryland is that the police must give an

announcement of authority and purpose, then it may be assumed that there

was mention made of an arrest warrant as Petitioner contends. However, if

there is such a rule or procedure, and the police maintain that they did

not make an announcement of authority and purpose, then they would have

violated the laws of the State by not so doing.

Fourth, the most important consideration is "intent", and clearly, in

the instant case it was the intent of the police to arrest Petitioner, and

since Art. 41, Sec. 28A, Maryland Annotated Code, allows the police to make

a warrantless arrest, without restrictions, it may be assumed that they

did mention that their intention was to arrest. Therefore, even if they

claim that they did not state that they had a warrant, the mention of

arrest: We are here to arrest you, or, You are under arrest, might well be

considered as sufficient coercion to gain entrance.

That the record might indicate that the Petitioner let the police into

the livingroom does not answer the question of why he did so, and when one

considers the circumstances of the arrest, it is quite clear that there was

an illegal arrest made, either by a violation of State laws; a violation of

the Constitution; or, sufficient coercion to make the arrest illegal.

Petitioner contends that, because the police told him that they had a

warrant for his arrest, when in fact they did not, he was coerced into

allowing them to enter his home. Therefore, the arrest of Petitioner was

illegal, and as such, would taint any subsequent circumstances.

AT,

Petitioner contends that Art. 41, Sec. 28A, Maryland Annotated Code,

is unconstitutional on its face because of the fact that it contains no

restrictions, such as making sure to gain consent to enter the dwelling to

make a warrantless arrest. Under the present language, the police may well

assume that it is permissable to enter a dwelling, even with force, to make

a warrantless arrest. As it stands now, the law is too broad and may well .

cause the police to engage in illegal arrests.

Petitioner submits that he is not sure of whether or not, at this time

he has the right to question whether or not any arrest, without a warrant,

made in the home, even with consent to enter, can be considered as legal,

in as much as consent to enter may be obtained under any ruse. Where there

is such a law as Art. 41, Sec. 28A, which allows a warrantless arrest ina

home, the police, so as to circumvent Payton and Riddick, might easily gain

consent to enter under any ruse, then make their arrest. Thus, it would

become a legal arrest, without a warrant, based solely upon a consent that

was given for something else.

The sole basis for making a warrantless arrest in the home legal, at

this time, is consent to enter the home. How the consent was obtained, and

under what ruse it was obtained, must be the controlling factor in ruling

on whether or not a warrantless arrest was legal. It must be admitted that

there is, unfortunately, an intimidation in the words, "Open up, we are the

police", or "This is the police, we are here to arrest you," or even,"We

are police officers, may we come in and talk to you?" Therefore, these may

be considered as coercive, making a consent invalid.

Because of the fact that warrants are easily obtainable where there is

probable cause, and exigent circumstances Constitutionally allow police to

make warrantless arrests anywhere, any warrantless arrest in the home, even

with consent to enter, should be unconstitutional, simply because consent

to enter may be obtained by any ruse. Such a ruling would eliminate all of

the probable arguements that would arise over the consent. How simple to

state that the police may not make a warrantless arrest in the home under

any circumstances other than exigent circumstances, thus eliminating any

arguements aw to valid or invalid consents.

Petitioner elaborated upon this issue because this court stated that

it had not, even in Payton and Riddick, resolved all questions pertaining

to warrantless arrests in the home and the issues related thereto. It may

be that the Petitioner does not have the right to raise this issue at this

time, in this petition, though it pertains to the matter at hand, and, if

such is the case, the court may easily set it aside without refusing to

consider the other issues in this petition.

_ practical purposes waived it on appeal.

1S.

We turn next to Art. 41, Sec. 28A, Maryland Annotated Code, and the

question of an illegal arrest under this statute. The questions that must

be considered here are, is this statute unconstitutional because it does

not contain any restrictions as to how an arrest without a warrant may be

made. At the present time it simply states:

The arrest of a person may be lawfully made

by any peace officer without a warrant upon

reasonable information that the accused

stands charged in the courts of a state with

a crime punishable by death or imprisonment

for a term exceeding one year...

In as much as it says nothing about such an arrest in the home and is

quite broad in scope, it should be considered as unconstitutional as it

now stands.

As previously stated, the arrest would be illegal in any event as the

police obtained consent to enter by stating that they had a warrant for the

arrest of Petitioner, when, in fact, they did not have one. A consent that

is obtained under such a ploy is invalid, as the possession ofa warrant

infers that a person does not have a right to resist the entrance of the

police to effectuate the arrest.

Additionally, Petitioner contends that tne police in the instant case,

did.not have the information pertaining to the crime and time involved in

the California issue. The only information that the police had when they

made the warrantless arrest was a telegram from California that stated that

Petitioner was a parole violator and California would extradite. Therefore,

the arrest would be illegal, under Maryland's laws, because the police

failed to comply with the requirements of Art. 41, Sec. 28A.

The State maintains that the police arrested Petitioner under Art. 41,

Sec. 28, Maryland Annotated Code, because they took him before a district

court commissioner at 10:00 p.m. the night of October 30, 1977. However,

the State fails to realize that Petitioner was arrested by the police,

without a warrant, at 12:30 p.m. in the afternoon of October 430. Since the

police arrested Petitioner at that time, without a warrant, the authority

for the arrest had to be Section 28A (Warrantless arrest), not Section 28

(Arrest before a commissioner). The State simply ignors the fact that the

police made the arrest at 12:30 in the afternoon, not 10:00 p.m. at night.

Additionally, the lower court stated: (Slip Op. 25) "Finally, in the

Miranda regard, appellant contends that because no fugitive warrant was

obtained pursuant to Md. Code, Art. 41, Sections 28 and 28A, his initial

arrest was illegal and the statements were inadmissible as the fruit of

such illegality. Appellant having failed to raise this below has for

1G,

Aside from the fact that Petitioner did not claim that the arrest was

illegal because no fugitive warrant was issued, instead, claimed that the

arrest was illegal because the police failed to comply with the requirement

of this statute, the lower court, after refusing Petitioner the right to

raise the issue, showed predjudice by stating: (Slip Op. 34) "Appellant

was legally arrested as a fugitive."

Petitioner has presented arguements that the arrest was illegal, and

the crucial significance of these issues is that, if true, there would be

no subsequent circumstances from which the court could draw a conclusion

that there was voluntariness and waiver. Because of the illegal arrests

the circumstances are tainted as fruit of a poisoned tree. State v. Kidd,

281 Md. 32, 375 Ae 2d 1105 (1977); Mefford v. State, 235 Md. 497, 201 A.

2d 82h (1964) ; Wong Sun v. United States, 371 U.S.471, 83 S.Ct. 407, 9 L.

Ed. 2d. 441 (1963).

Next, Petitioner was taken to the barracks and read the warnings for

the arrest issue again. He requested counsel, informing the police that he

was an indigent. (Tc. 40, 46). The police elected to cease questioning as

this request effectively "cut off questioning" on the arrest issue. Then,

Petitioner was routinely processed, which action concluded the investigatio

as to the arrest issue.

At this time, Petitioner had every right to expect that the police

would follow the dipective of Art. 41, Sec. 28A, which states: "But when

so arrested the accused must be taken before a judge or district court

commissioner with all practicable speed."However, in the instant case, the

police took Petitioner to the investagation office for questioning about an

unrelated incident, even though the barracks where Petitioner was being

held was only ten minutes from the commissioners office, and there was no

justification or necessity for not complying with the directive,

In place of the McNabb-Mallory Rule, Maryland relies on Johnson v,

State, 31 Md. App. 303, 355 A. 2d. 504% (1976), though Petitioner contends

that this case does not cover the entire scope of predjudice that results

from such a delay. However, it states:

"Where the delay is less than the proscribed

maximum this rule anticipates that a deter-

mination as to necessity and reasonableness

of the delay will be made by the courts on

a case to case basis." 282 Md. at 320, 284A

at 212-13.

In Petitioner's case, the only determination that was made as to the

reasonableness and necessity was as follows, by Judge Thayer:

"I find that the requirements of the johnson

case are not applicable as I understand the

210.

testimony. That the delay in this case is

not unreasonable." (Tc, 342) | :

In view of the fact that the police offered no excuse for the delay;

none was asked for by the judge; the close proximity of the commissioners

office; and, the delay was for a total of ten hours, the delay cannot be

considered as anything other than unreasonable. The decision of the judge,

based upon his understanding of the testimony, could hardly be considered

as a fair determination of reasonableness and necessity

Additionally, the police admit that they had no probable cause in

relation to Rusty Marine. (Tc. 61). See, United States v. Greer, 566 F. 2a

472, 473-74 (5th Cir.) 425 U.S. 1069 (1978). (Probable cause is necessary

for nine hour detention and questioning). Considering McNabb- Mallory and

Johnson, Supra it is quite clear that the delay was unreasonable in this

case. As a poisoned tree, this illegal action would taint the circumstances

subsequent to the action, and those circumstances could not be used by the

court for a finding of voluntariness and waiver.

Johnson, Supra, goes even further:

"In our view the defendant suffers predjudice

whenever a statement procured during an illegal

delay is used against him at trial or leads to

other evidence ultimately employed to convict

him. " 282 Md. at 327, 254 A. at 716.

We not only have the statements of Petitioner taken during the delay

that led the police to the area where the Petitioner had been hunting on

Saturday@ the area where the bodies were discovered) (Tc. 33), but we also

have numerous statements, used at trial, that were employed to show that

Petitioner's actions were voluntary and that a waiver could be assumed to

have beem made by Petitioner from these words and actions. To wit:

(Tc. 335) When Mrs. Larmore came to the barracks on Monday, the 3lst

of October, in the presence of Trooper Hornung, Leuschner stated to her

that he had killed Rusty Marine.

(Tc. 336) Petitioner catagorically denied the offer of the phone even

though Keating, Hall, and Lewis testified that the offer was made.

(Tc. 341) Petitioner asked Mrs. Larmore to get him a lawyer, ans she

said that she would get one the next day. Petitioner was satisfied. 3

(Ta. 360) Again, mention of the use of the phone and refusal to do so

by Petitioner.

These are but a few of the statements that were used to show that the

Petitioner's actions were voluntary. However, the court might note that

there are many other predjudicial remarks and actions that occured during

this illegal delay, making Johnson, Supra, applicable to this case.

aie

aS

I,

However, even disregarding these statements that were made during the

delay, the most significant evidence of predjudice is that the lower court

used these circumstances, actions, and words, obtained during the delay to

rule that there was voluntariness and waiver.

Petitioner has shown that there were two illegal arrests as well as

an illegal delay, all of which would taint the subsequent circumstances

that the court used for it's findings. Now, Petitioner further stresses

United States v. Greer, Supra because the police detained and questioned

Petitioner about an incident unrelated to the arrest issue, without the

benefit of »robable cause, for ten houns.

That Petitioner was arrested for parole violation does not remove his

, rights. In fact, it brings them into closer focus because he is now faced

with the adversary process. Once the police had concluded the arrest issue,

Petitioner should have been taken before a commissioner, but instead, the

police took him to the investigation room for questioning. Because of the

fact that Petitioner, though arrested for parole violation, retains his

rights, he could not be held forcibly, because he could not leave the

barracks of his own free will, without probable cause to answer questions

about an unrelated incident. Since this action also violated Petitioner's

Constitutional rights, the subsequent circumstances would be tainted.

Petitioner contends that the court might also consider that the actior

of the police, unjustified use of police arrest powers, created a technical]

arrest, which is significant because of the fact that there would be no

evidence to support the arrest, making it illegal.

See, 5 Am. Jur. 2d. Arrest, Sec. 1:

‘Any act that indicater an intention to take

a person into custody and that subjects him

to the actual control and will of the person

making the arrest.'

From, 'A Citizens Guide to Legal Rights', by J. Shane Creamer (4th

printing, October 1974, Ch. 4)

'The law of arrest uniformly holds that virtually

any restraint by a police officer, no matter how

slight, when coupled with an intent by the officer

to arrest, constitutes a technical arrest.'

That there was a seizure and restraint is evident from the record, and

because of the suspicions directed against Petitioner, and interrogation

for imcrimination (Tc. 58, 59, 267, 273, 194), it would be ludicrous to say

that there was no intent to arrest, for the Marine issue.

The significant point is that a technical arrest, which becomes an

illegal arrest, would taint the subsequent circumstances s0 that they could

Nor ue used to show voluntariness or waiver.

fs,

ay en

These issues, already mentioned, have preceeded the circumstances in

question and would have tainted these circumstances to such an extent that

they could not logically, or justly, be used to rule voluntariness or

waiver was evident from a review of these same circumstances. A primary

question that must be considered is, whether or not the court will rule

on these issues, because of their crucial impact on the circumstances, or

whether the court will remand the case back to the lower court so that thai

court might resolve these issues before reaching an. finding on waiver or .

voluntariness with the help of these circumstances.

It is significant that the lower court has stated (Slip Op. 32) "In

the light of that experience, we then look at the circumstances giving ris

to the confession. Bram v. United States, 168 U.S. 532 (1897). There is

presumably no restriction upon factors that may be considered but the case:

generally have emphasized those which should not be overlooked." And the

lower court includes (6) the legality and illegality of arrest, Payne v.

Arkansas, 356:U.S. 560 (1958), Ward v. Texas, 316 U.S. 547 (1942), and (8)

delay in presentment to a commissioner, Johnson v. State, Supra, and (10)

prolongation of interrogation, Ashcraft v. Tennessee, 332 U.S. 143 (1944);

Turner v. Pennsylvania, 338 U.S. 62 (1949), and Leyra_v. Denno, 347 U.S.

556 (1954), and (11) the failure to warn or appraise the accused of his

rights, Payne, Supra, Turner, Supra, Harris v. South Carolina, 338 U.S.

68 (1949), Watts v. Indiana, 338 U.S. 49 (1949).

However, it may be clearly seen that the lower court itself did not

review the record for, or consider, these issues (6), (8),(10), and (11),

before using the circumstances, that these issues may have tainted, for a

finding of voluntariness and waiver. Therefore, it is reasonable to assume

that, since these issues are crucial and did occur in the present case, a

review of the lower court's opinion is justified in view of the facts.

Petitioner now turns to the circumstances themselves, using the lower

court's slip opinion as a basis for showing that that court failed to make

a fair and just decision in the instant case and, therefore, certiorari

should be granted by this court.

y (Slip Op. 10) October 30, 1977, Petitioner was arrested for parole

violation, because California would extradite (telegram). At the barracks

he was read the warnings and requested a lawyer. He was routinely processes

and taken to the criminal investigators office. There he was questioned

concerning Rusty Marine. |

1A. Several things may be noted here. As to Art. 41, Sec. 28A, and the

contention of Petitioner that the police failed to meet the requirements

of necessary information, the note that California would extradite is the

43."

message that the police received by telegram from California. Although this

may have been sufficient for a judge or commissioner to issue a warrant on,

it did not meet the requirements of Art. 41, Sec. 268A. Also, the court may

note that the evidence here conclusively shows that the arrest issue had

been completed and Petitioner, instead of being taken before a commissioner

as this statute requires, with all practicable speed, was taken to the

Criminal Investigation Office for questioning on an unrelated incident.

2. (Slip Op. 11) That request for counsel was "scrupulously honored" as

a triggering mechanism for his "right to cut off questioning" in regards

to the charge for which he was arrested; however, he willingly agreed to

discuss the missing toy."

2A. It is important for the court to note that the lower court stresses

that this request for counsel was a triggering mechanism for the "right to

cut off questioning." Therefore, the lower court could hardly turn around

and say that a request for counsel does not require that the police must

cease questioning when a. request for counsel is made. The reason for the

importance of noting this is that such was not done later when Petitioner

again requested counsel. Additionally, there is a question here as to the

obligation of the police to read Petitioner the Miranda warnings. We have

to move to (Slip Op. 13, Footnote 3)

Until the next day the police did not know if the boys

were alive or dead, safe or sound, restrained or free,

or simply run-a-ways. The police were simply seeking

information about one of the boy's whereabouts from

the last person known to have seen him. Although it is

apparent that the police had more than a passing

interest in Leuschner and obviously had some suspicion

that he was not disclosing all he knew about the missing

Rusty, in a criminal sense he was not focused upon a -

accused. Escobedo v. Illinois, 378 U.S. 478 (1964).

Leuschner not been lawfully in custody as a teartice. a

could not have been held or charged as an accused in the

absence of some probable cause by the police to believe

he had committed a crime. While one may be a suspect in

an investigatory sense, he could hardly be focused upon

as an accused until a crime with which he might have

been connected is known to have been comnitted--by

someone.

The lower court has answered several things here which the court must

take note of, as it supports Petitioner's contentions.

(a) The lower court states that Petitioner could not be held in

the absence of probable cause, and contends that because he

was lawfully in custody for a parole violation arrest, he

does not retain his rights as a citizen, not to be held by

the police unless probable cause is present. This is grave

error, and the fact that the arrest issue was completed and

the law in Maryland requires that, after the ini process —

of identification is completed, an arrested person must be

aH.

taken before a judge or commissioner with all practicable

speed, makes it quite clear that an arrestee retains all of

his Constitutional rights. United States v. Greer, Supra.

(bv) Petitioner contends that the lower court is in error when it

maintains that a crime must be known, that there must be a

crime already committed.

(Slip Op. 3) Soon to follow Massiah was Escobedo v. Illinois,

Supra, which extended the right to counsel to a suspect-not

necessarily indicted-but from the moment the investigatory

phase of an interrogation becomes accusatory and focused upon

the suspect.

"(Where an) investigation is no longer a general

inquiry into an unsolved crime but has begun to

focus on a particular suspect, the suspect has

been taken into police custody, the police carry

out a process of interrogation that lends itself

to eliciting incriminating statements, the suspect

has requested and been denied an opportunity to

consult with his lawyer, and the police have not

effectively warned him of his absolute constitutional

right to remain silent, the accused has been

denied 'the Assistance of Counsel' in violation of

the Sixth Amendment to the Constitution as 'made

obligatory upon the States by the Fourteenth

Amendment, Gideon v. ra Een ihy 372 U.S. (335 (1963)

at 342, 9 L.Ed.2d. at 804, 93 ALR2d 733, and that

no statement elicited by the police during the

interrogation may be used against him at a criminal

trial." 378 U.S. at 490-491

Thus, it is clear that the basis for reading the warnings is

triggered by the suspicion that the suspect has committed a

crime, is in police custody, and is being interrogated for

incrimination, when the focus has shifted upon the suspect

as one who has committed some crime.

The question is, in the instant case, were the police obligated to

read the Petitioner the warnings before questioning about Marine? It isa

matter of record that the police did not, at the first questioning related

to Marine, read the warnings. Therefore, Petitioner must show that Miranda

was, in fact, triggered by the circumstances at that time. This requires a

showing of facts that are available in the records.

(a) Slip Op. 10, Petitioner was taken to the Criminal Investigation office

for the express purpose of questioning about Rusty Marine. Intent to

question is thus answered.

(b) Tc. 267,273, Miss Judy Zimmerman testified that Trooper Bacon told

(c)

her that Petitioner was suspected of murdering two boys and burying

them. This was at the farm where Bacon had recruited her assistance

in locating the graves. Significantly, this occured on the morning

of October 30, 1977, prior to Petitioner's arrest on the same day.

Tc. 58,59, Sgt. Luce admits that Petitioner was a suspect and, since

Luce was in charge of the investigation, it may be assumed that Tpr.

Bacon was aettas under the orders of Luce when he went to the farm

to try and locate

the graves of two murdered boys.

¢

te

Y

© sey

;

(d) Tc. 194, Trooper Hall testified that the police were questioning the |

Petitioner to see if he was involved in kidnapping or murder, which

is what the police had suspected happened to the boy.Tc. 193.

(e) Petitioner was in total custody,(and though the arrest issue had been

concluded, he could not leave), was a prime suspect in a kidnapping

and murder, and was interrogated for incrimination.

Reviewing these facts, there can be no question but what Miranda was,

in fact, triggered, and the police should have read the warnings to the

P. titioner. Although the lower court maintains that Petitioner was willing

to talk to the police about Marine, and may have done so, this does not

excuse the police from obeying the law in a manner inconsistant with that

law. Petitioner's actions cannot erase police misconduct or failure by the

police to follow the law as proscribed.

Miranda v. Arizona, 384 U.S. 436 (1966):

"Prior to any questioning, the person must be

warned that he has a right to remain silent,

that any statement may be used as evidence

against him and that he has a right to the

presence of an attorney, either retained or

appointed. 384 U.S. at 444.

Michigan v. Mosley, 423 U.S. 96 (1975):

"Questioning on an incident unrelated to the

one for which the accused is in custody may

be pursued (after the accused has cut off

questioning as to the incident for which he

was arrested) if full and complete Miranda

warnings are given to cover the second

Mincey ve. Arizona, 98 S.Ct. 2408, 2416 (1978), voluntary statements

are inadmissible at trial because of Miranda violation. And also, any use

of involuntary statements at trial denies due process even though ample

evidence aside from confession supports conviction. Jackson v. Denno, 378

U.S. 368, 376 (1964).

The evidence indicates that the police should have read the warnings

to Petitioner before questioning him about Marine, and, because they failed

to do so, as required by law, no statements obtained during interrogation

could be used against him. Further, the illegal action of the police had

to taint subsequent circumstances. Those circumstances in question here. ~

3. (Slip Op. 12) This is the testimony of Sgt. Luce and the time refered

to here is prior to 4:00 p.m. During this time, Betty Larmore, girlfriend

of Petitioner, came in and was permitted to be with, and talk to him. The

Petitioner relayed his request for the retention of counsel to her. Luce

states that Petitioner requested her to get a lawyer for the California

issue and not the Marine issue. According to this testimony, this is what

Sgt. Luce overheard them talking about..

"Aloe

3A. Petitioner shows here, factual evidence to refute the testimony of Sg

Luce, as to Betty being there at the time stated and, as to Luce being abli

to overhear them talking about a request for counsel for the California

issue.

(a) Tc. 35-6, Sgt. Luce testified that Mrs Larmore (Betty) was not

present until 6:00 p.m.(At which time Lt. Keating, not Luce, was the

one questioning Petitioner(Tc. 68). Therefore, Sgt. Luce could not

have seen Betty or overheard any conversation between Betty and the

Petitioner.

(b) Slip Op. 15, Lt. Keating testified that when Betty came into the roo:

he could not hear all of the conversation, though there was mention

of an attorney, for what, he could not say. Therefore, if Luce was

testifying as to what Keating told him, the content of the alleged

conversation is not true, as Keating stated that he could not tell

exactly what was discussed as far as counsel was concerned,

(c) Tc. 176, Betty testified that when she went into the room, she asked

Petitioner to talk about Rusty Marine. Petitioner said, No, get me

a lawyer. Since Betty made no mention of the California issue, and

siated that, when she tried to get him to talk about Busty, he said

no, he wanted a lawyer, there can be no doubt but what he wanted a

lawyer for the Marine issue and not the California issue, as the

police and the lower court maintain.

(ad) Tc. 176-77, Betty testified that when she asked him to talk about

Rusty, he said that he was not going to answer any questions until

he saw a lawyer. Hardly indicitive of waiver. She also testified tha’

the police were in the room, and when Petitioner requested counsel,

they said, "We're not getting anywhere with him," and asked Betty to

leave the room.

In view of these facts, it is quite evident that the testimony of Luct

could not be used to help support a finding of waiver or voluntariness, as

the testimony could hardly be considered as admissible evidence. Further,

the factual evidence clearly indicates that Petitioner made it clear that

he was not goh@ng to answer any questions until he saw a lawyer, and, that

he did not want to talk about Rusty Marine.

4. (Slip Op. 13, 14) At 4:00 p.m., Lt. Keating and Trooper Hall ran the

interrogation of Petitioner, relating to Rusty Marine, and prior to any

questioning they read the warnings to Petitioner. Leuschner never indicates

a desire to stop talking about Rusty; but about an hour after Keating had

arrived, Mr. Leuschner said he would like to have an attorney. After the

request, Keating advised Petitioner, "Theres the phone, you can call an

attorney, or I'll call one for you." Petitioner made no effort to use the

phone or the telephone directory.

4A. Petitioner shows here, factual evidence to refute the testimony of Lt.

Keating taken from the records. Petitioner will also show that there is a

serious misunderstanding of Miranda and Mosley, AND THE OBLIGATIONS THAT

ARE, IN FACT, PLACED UPON THE POLICE IS SUCH A SITUATION.

aT. "

_ At 4:00 p.m., when Keating took over the interrogation with Trooper

Hall, they read the warnings to Petitioner. Keating infers that there wus

no request for counsel made at that time, yet, an hour later there was a

request for cornsel.

(a) Tc. 68, 69, Keating's testimony that he and Hall interrogated, and

Petitioner said, "I want to talk to an attorney." This was not an

hour later but at the very beginning of the interrogation.

(>) Trooper Hall was with Keating and he testified (Tc. 188-89), that at

the beginning of the interrogation the Petitioner stated that "he

did not want to talk about the Marine but but wanted a lawyer." He

also testified that Petitioner requested a lawyer twice, and at the

second request he was told, by Hall, not Keating, that he could call

a private lawyer but would have to wait until he was formally charge¢

to get a public defender.

(c) Tc. 338, 339, Judge Thayer acknowledged that the statement was made

by Trooper Hall, and, that it was a misquotation of Miranda.

Lt. Keating also testified that the Retétioner never indicated a

desire to stop talking about Rusty Marine (Tc. 100).

(a) Tc. 188, Hall testified that Petitioner said that he did not want to

talk about Rusty Marine.

(b) Tc. 176, Betty testified that when she went in to see Petitioner and

asked him to talk about Rusty, he said, no, get me a lapyer. She

also testified that that he said, he was not going to answer any

questions until-he saw a lawyer. a

The lower courts have all made an issue abott this offer of the phone

made by Trooper Hall, disregarding the fact that Hall misquoted Miranda

and Petitioner was an indigent who notified the police of such.

(Slip Op. 14, Footnote 4) It should be noted that no case

has as yet placed the burden of providing counsel upon the

police. It is the denial of a request to permit an accused

= contact counsel that violates the constitution,

i » 357 U.S. 433 (1958), and Lt. Keatin ously

aoe ded amp e opportunity and assistance to effec that

purpose. Nor is there a per se rule as appellant would urge

upon us that the police must terminate any contact with an

: accused unless counsel is ree once a request for counsel

is made. Michigan v. Mosley, 423 U.S. 96 (1975).

To this, Petitioner can only turn to the decisions of the Supreme Court foz

an answer. Escobedo, Miranda, and Mosley: Once a request for counsel has

been made, the police must cease questioning. 384 U.S. at 444-445; If he

indicates in any manner that he wishes to consult with an attorney before

speaking to police, there can be no questioning. Id. at 444-445; If he

indicates in any manner that he wishes to remain silent the interrogation

must cease. 384 U.S. at 473-474; The court in Miranda showed “that when it

wanted to create a per se rule against further interrogation after assert-

ion of a right, it knew how to do so. The court there said that, "(i)f the

indicidual states that he wants an attorney, the interrogation must cease —

>

' AX,

until an attorney is present." 423 U.S. at 109-110.

The court may say that this does not answer the question of whether

or not there is an obligation on the police to obtain counsel for the

Petitioner once he‘has made a request for a lawyer, however, the court can

clearly understand that, if a request for counsel "cuts off questioning",

the Petitioner need not make any effort to use the phone to call counsel

just to allow the police to question further about something that the

Petitioner does not want to discuss, as evidenced by the request. If the

police want to continue questioning after the request, then they would

have to obtain counsel to do so, not the Petitioner because he already has

what amounts to a lawyer standing between him and further questioning by

the police, "the right to cut off questioning." Thus, contrary to what

the lower court says, the police have an obligation to cease questioning,

and, if they wish to continue, provide counsel.

Thus, the issue of the offer of the phone becomes moot, but not for

this reason alone, though it should be sufficient. When the offer of the

phone was made, Keating and Hall testified that the Petitioner made no

effort to use the phone, nor did he say anything, and, of course, since

the request had cut off questioning the phone was unimportant. However,

the court might note the following from Miranda:

"The record must show, or there must be an allegation

and evidence which show, that an accused was offered

counsel but intelligently and understandingly rejected

the offer. Anything less is not waiver." 384 U.S. at 475

Surely the court cannot accept silence and inaction as indicitive of

an intelligent and understanding rejection. Doyle v. Ohio, 426 U.S. 610,

617-18 (1976) (Defendants silence is ambiguous and may represent the Fifth

Amendment right to silence. Thus, the issue of the phone becomes moot for

yet another reason and could not be used to show waiver or voluntariness,.

5. (Slip Op. 15-16) Refers to the fact that Keating did not hear all of

the conversation between Betty and Petitioner, could not state just what

Petitioner wanted a lawyer for. Refers also to Halls testimony that the

Petitioner did not want to talk about Marine and wanted a lawyer. Keating

states that during two and a half hours Petitioner did not indicate any

desire to cut off questioning.Lower court states (Footnote 5) that the

trial judge believed this testimony that no further questions were asked,

and states also that it (lower court) found no reason to believe otherwise

Keating states that Petitioner never stopped talking about Marine and

after request for lawyer, no further questions were asked of him. Trooper

Hornung questioned Petitioner about Marine, and asked him if he would be

OX,

willing to take a polygraph test. Petitioner stated that he would not take

a polygraph test without first consulting with a lawyer.(Slip Op. 16-17).

5A. In view of the fact that Luce could not have overheard Betty and the

Petitioner talking, because she did not show up until after 4:00 p.m., and

Keating testified that he did not hear just what the request for a lawyer

was for, the lower court could not state that the Petitioner only requested

a lawyer for the California issue. (Tc. 35-6).

Considering the testimonies of Hall and Betty (Tc. 176, 188), that the

Petitioner stated that he did not want to talk about Rusty, and would not

answer any questions until he saw a lawyer, it is hard to understand how,

or why, he would just continue talking about Rusty for two and a half hours

and, refutes Keating's testimony that Petitioner did not indicate any desir

to cut off questioning, particularly since the two requests for counsel tha

the police admit were made, should have cut off questioning.

While it may be understandable for a trial court to believe testimony,

the same can not be said for the lower court here because of the reliance

on Walker v. State, Sunra, to review all of the necessary records to reach

the truth. Slip Op. 31: "Justice is (or should be) concerned with the truth

whether it convicts or exonerates."

As to Keating's testimony that no further questions were asked of the

Petitioner after he had requested counsel:

(a) Tc. 86, Keating testified that Petitioner was questioned for about

two to three hours after he had requested counsel. He stated that it

was his normal practice to cease questioning when a request for

counsel is made, but did not do so in this instance.

(b) Tc. 191, 192, Hall testified that Petitioner did not express any

interest in calling a lawyer, and a short time later we resumed the

questioning. He stated, Petitioner was asked certain questions by

Lt. Keating and himself.

(c) Ta. 46, 47, 180, After the two requests for lawyer between 4:00 and

6:00 p.m. (between the hours of 7:00 to 9:30 p.m.) Petitioner was

questioned by Luce and Hall; Hornung, Bacon, and Pollack; Luce and

Hall again; Hornung again; and, Lewis.

6. (Slip Op. 17) These were the references made by Appellant expressing

a desire for counsel. In the first instance he restricted his request solel

to the fugitive charge and volunteered to help with the search for the

missing boy, Rusty Marine. The officers honored the second more general

request by refraining from questioning further and by offering assistance

in procuring counsel. Appellant, instead of accepting the officers' assis-

tance, preferred to talk again with Betty whom he had commissioned to get

him counsel for the fugitive charge which she expressed an inability to do

because it was the Sabbath. Prognosticating this precise possibility, it

will be recalled Miranda said:

30.

"If the individual cannot obtain an attorney

and he indicates that he wants one before

speaking to police, they must respect his

decision to remain silent." 384 U.S. at 474

(Slip Op. 18) But Leuschner did not indicate that he wanted counsel

before speaking further to the police. On the contrary, without any prompt-

ing, Appellants continued conversation of the subject under inquiry, both

to Betty Larmore in the presence of the police and to the police, belied

any inference that he was exercising his Fifth Amendment right.

6A. Petitioner admits that his first request for counsel was indeed for

the fugitive issue, but, as to Petitioner volunterering to help the police

in the search for the missing Rusty Marine, the lower court could not use

this to help reach their finding of voluntariness and waiver because, as

Petitioner pointed out, the circumstances required that the police read the

warnings to Petitioner and they failed to do so. ,

As to the police honoring the "second more general request" by refrain

ing from questioning and offering assistance in procuring counsel

(a) Tc.86, 191, 192, and Ta. 46, 47, 180, Keating, Hall, Luce, Hornung,

Bacon, and Pollack, all testified that the police continued to

question Petitioner after the requests for counsel.

As to Petitioner requesting Betty to get him a lawyer for the fugitive

charge, Petitioner showed by factual evidence that neither Keating or Luce

actually heard him ask Betty to get him a lawyer specifically for the

fugitive charge, and, because Betty testified that when she asked him to

talk about Rusty, he said, no, get me a lawyer, it should be assumed that

he was asking for a lawyer for the Rusty Marine issue, particularily since

he had been read the warnings and was being questioned as to a kidnapping

and murder. It is ludicrous to imagine that this intelligent man would, in

the face of these serious charges involving a young boy, request a lawyer

for a parole violation charge.

Because the police did at least hear the Petitioher sequest a lawyer

of Betty, though not what for, Miranda is significant:

"If, however, he indicates in any manner

and at any stage of the process that he

wishes to consult with an attorney before

speaking there can be no questioning.

Id. at 4hh-4k5

And though the lower court states that Petitioner did not indicate

that he wanted counsel before speaking further to the police, Betty had

testified that Petitioner said, in the presence of the police, that he did

not want to talk about Rusty, wanted a lawyer» and would not answer any

guestions until he saw a lawyer, embraces Miranda at 444, 445, 474, and

refutes the lower court finding.

\e t 45 Ay).

The lower court states that Petitioner's continued conversation about

id Rusty Marine, to Betty and the Police, without prompting from the police,

belied any inference that he was exercising his Fifth Amendment right.

(a) Te. 71, 86,192, Keating and Hall testified that, after the request

for lawyer, they continued questioning Petitioner. This refutes any

belief that there was no prompting.

(b) Tc. 176, 188, Testimony by Betty and Hall that Petitioner stated that

he did not want to talk about Rusty Marine. This refmtes any belief

that Petitioner just continuously talked about Rusty Marine at this

time.

(c) The very fact that Petitioner asked Betty to get him a lawyer, then

requested a lawyer twice of the police (Keating and Hall) makes it

quite clear that he was exercising his rights. In the face of these

facts it would be ludicrous to state that the Petitioner was not

exercising his rights.

7 (Slip Op. 18, 19) Here, as in Butler, the actions and words of the

Appellant clearly implied a knowing and intelligent waiver of the rights

of which he was repeatedly advised and from his extraordinary past

experience must have been keenly cognizant.

Having found so clear a waiver of counsel, we note in passing that it

is questionable whether Leuschner was entitled to counsel (regarding the

missing Marine boy) at the time of his request. Throughout the entire day

there was no crime known for which Leuschner could have been focused upon

as a suspect. The Sixth Amendment right is a right of an accused, at least

in jeopardy of a portending criminal proceeding. Escobedo extended the

right from one formally accused (Massiah) to one focused upon as a suspect.

No case has yet provided the right as constitutionally available upon

a missing person inquiry, absent knowledge that a crime has been committed.

It would be judicially naive to infer that the police had not focused

their attention upon Appellant in regard to Rusty, especially in light of

Leuschner's record; however, the investigation could hardly turn accusatory

even as to Rusty, until some knowledge that a crime had been committed is

apparent to the police. that precise point:

"When the process shifts from investigatory

to accusatory...our adversary system begins

to operate...'' Escobedo, Supra, at 492

7A. Petitioner has shown, with factual evidence, there is anything other

than a clear waiver of counsel, as the lower court states:

(a) Petitioner requested a lawyer for the fugitive issue.

(bo) Petitioner requested that Betty get him a lawyer.

(c) Petitioner requested a lawyer twice of Keating and Hall

(d) Petitioner requested a lawyer of Trooper Lewis.

2aL

(e) Petitioner stated that he did not want to talk about Rusty Marine.

(f) After his reauest for counsel, at the time when the police stated

that they offered him the phone, Petitioner tried to exercise his

right to remain silent, knowing that, since the request effectively

cub off questioning, he need not speak or do anything.

(g) Keating and Hall testified that they questioned Petitioner after his

requests for counsel, and the factual evidence supports the fact tha

other teams of officers questioned him after his requests.

(i) Petitioner requested a lawyer of his niece, Judy Zimmerman.

This does not include the illegal conduct of the police, and it must

be admitted that it is unclear how the lower court could state that the

Petitioner waived his rights when the factual evidence, that was available

to the lower court, proves conclusively that the opposite is true here.

That the lower court may have found so clear a case of waiver does

not, as the factual evidence indicates, necessarily make it true. In fact,

because the lower court had access to more records and transcripts than

Petitioner, there is no reason for the court to have overlooked the facts

that are in the records. If, as the lower court states, it may look far

afield for evidence to support its findings, then it surely should have

looked at the transcripts of the first case, for it is clearly evident tha‘

the testimonies of Luce and Keating are contradictory. With the added fact:

supplied by Betty Larmore and Trooper Hall, State's witnesses', it becomes

very clear that the testimonies of Luce and Keating, used to great extent

by the lower court, did not match previous testimonies.

Even should the court state that the circumstances did not require

the reading of Miranda, that is, Trooper Bacon searching for the bodies of

two murdered boys and the admission by Bacon and Luce that they did indeed

suspect Petitioner of this action, there is still kidnapping to consider

because, supposedly, Petitioner was the last to see the boy alive, though

this is refuted by Betty Larmore, who testified that she was the last one

to see the boy alive. (Td. 437) 4 However, the suspicions of the police, as

to murder and kidnapping, the fact that Petitioner was a prime suspect in

connection with these acts, the fact that he was questioned for incriminat-

ion, as to these suspicions, triggered Escobedo ; and, the fact that the

Petitioner was in total custody for interrogation, triggered Miranda, and

the police should have read the warnings before questioning.

If, these suspicions and circumstances did not trigger Miranda, then

it is quite clear that the police were holding Petitioner illegally in

violation of the Constitution. However, once the police read the warnings

to the Petitioner 12 relation to Rusty Marine, circumstances changed, and

the request for a lawyer, by Petitioner, should have cut off questioning.

23:

8. (Slip Op. 20, 21) After the visit to the grave site, Petitioner was

permitted to have Betty come to the barracks, where she showed up a little

after Petitioner and the police. As she entered the room, with Keating

and Hall in the room, Petitioner told her that "he had taken Rusty". He

talked with Betty for five minutes and was then asked by the police to sigr

a waiver and make a statement. His rights were read and Petitioner signed

a waiver form. ;

8A. It may be noted that Petitioner wanted the lower court to examine the

waiver for alterations, Miller v. Pate, 386 U.S. 1, 17 L.Ed. 2d. 690, 87

S. Ct. 785 (1967), because he claimed that he signed the waiver-~on the

30th of October and not on the 3lst, as it is dated. Petitioner claims

that the date may have been altered, and the numbers (date and time) were

placed on the waiver by the same person who dated and timed the waiver that

was marked "refused to sign". This person was not present at the time that

the waiver was alleged to have been signed.

Additionally, the police, Petitioner, and Betty, were in the room at

2:30 pem. Keating stated that the Petitioner made his admission at 2:30

pem. (Tc. 95). Trooper Hornung testified that he heard Petitioner make the

statement to Petitioner's girlfriend Betty, and immediately thereafter he

signed the waiver, which would be around 2:30 p.m (Tc. 108-09).

There is yet another significant point. Just prior to the alleged

signing of the waiver, she told Petitioner of her unsuccessful attempts

to get a lawyer. Petitioner stated,"Thanks for trying, but I'll geta

lawyer now when I fill out this form (Public Defender fo: 1 that brought

Patrick Rogan into the case). The police were in the room and admitted

hearing this. (Tc. 167,168)

"If, however, he indicates in any manner and

at any stage of the process that he wishes

to consult with an attorney before speaking

there can be no questioning." Id. at 444-445

"If the individual cannot obtain an attorney

and he indicates that he wants one before

speaking to police they must respect his

decision to remain silent. Id. at 474.

It must be admitted that it is unlikely that an intelligent person,

faced with murder and kidnapping, who knows his rights and shows that his

intention is to get a lawyer, would, minutes later, sign away his rights

that would protect him.

A point about the waiver. It was alleged to have been signed at 4:00

pem., one hour and a half beyond the time (2:30 p.m.) that evidence shows

it may have been signed, if it was signed at all on the 31st.

t Be,

9. (Slip Op. 21-23)Now that the police were aware that Rusty had been

murdered by Leuschner, in light of the content cf his confession, he was

apparently suspected of similarly disposing of the -missing Troy Krause.

After talking to Betty Larmore, he called for Lt. Keating and asked

about the reward, to see if Betty would be entitled to it. when Keating

told him that he had no control over the reward, Petitioner made a verbal

confession to Betty, with Keating present.

Appellant helped the police search for the missing boy, but they had

no success, so Petitioner volunteered to take.a polygraph test.-He was

taken to Easton for the test, returning to Sailsbury for a bond review

before Judge Dallas of the District Court there. Judge. Dallas advised

Petitioner of his rights and cautioned him not to discuss the case with

anyone. The next day he went back to Easton to finish the polygraph test.

On the way back to Salifbury, in the back seat of the car, he told

Betty the exact location of the voy's burial site, and she relayed this

information to the police. Two officers went with Betty, and two other

officers brought Petitioner into a woods on a farm in the area. Finally,

midmorning (Thursday) November 3rd, Troy's body was found.

QA. The lower court states that the Petitioner was now a suspect in the

disappearence of Troy Krause, and, though the Marine matter was concluded,

he was being held because the police intended to question him in regards

to the Krause matter. As a prime suspect, in total custody, about to be

interrogated for incrimination, Petitioner contends that here again the

police should have read the Miranda warnings to him before any questioning

began. Miranda, at 444; Mosley, at 109-110.

The lower court maintains that there was no requirement nor any

legitimate purpose to be served by again reading Miranda, disregarding

both Miranda and Mosley, citing Smith v. State, 20 Md. App. 577, 587,(1974)

cert. den. 272 Md. 748 (1974), cert. den. 420 U.S. 909 (1975), a case that

was ruled on prior to Mosley.

The lower court accedes that the two were connected in the mind of

Appellant, byt infers that "what went before" shows that Petitioner did

not intend to exercise his rights. However, since, in the mind of the

Petitioner, all of what went on before consisted of illegal action by the

police and denial of his rights, he might well have thought that he could

not get his rights from the police, which would be coercion.

However, the contention, aside from the fact that Keating failed to

meet the requirements of Miranda and Mosley, is that the illegal cogduct

of the police invalidated any waiver or atatement, and that a second

statement would be improperly influenced byg, these previous actions.

Clewis v. Texas, 386 U.S. 207, 87 S.Ct. 1338, 18 L.Ed. 2d. 423 (1967);

Keller v. State, 2 Md. App. 623, 236 A. 2d. 313 (1967); Canal Zone v,

Gomez, 566 F. 2d. 1¢89, 1291 (5th Cir. 1978); United States v. Womack,

542 F. 2d. 1047, 1051 (9th Cir. 1976); United States v. Nash, 563 F. 2d.

1166, 1169 (5th Cir. 1977); Brown v. Illinois, 422 U.S. 590, 602 (1975).

(a) Tc. 79) (Ta. 101) Keating testified that he questioned Petitioner

about Krause, after the conclusion of the Marine issue and admits

that he did not read the warnings. -

(b) The most significant point comes from Keating (Slip Op. 22). He was

in the room when Petitioner told Betty that he took Krause, andhe

states, "I questioned him too, as to whether the boy was dead or

alive,"

It is clear that, as Keating was aware Petitioner's admission, from

his talk with Betty, he definately, then, should have read the warnings

before he asked Petitioner any questions at all.

Petitioner has been unable to research this point, but is certain that

in the State of Maryland, an accused must be given an "Initial Appearance",

Rule 723, Appearance, within a certain time(24 hours?). The State claims

that Petitioner's appearance before Judge Dallas was merely for a bond

review, which does not meet the requirements of Rule 723..If this is indeed

the case, then Petitioner's rights were denied.

However, if the State maintains that this was an appearance to satisfy

Rule 723 (of which a transcript must be available) it will be noted that

Petitioner appeared before the judge without counsel and the judge failed

to comply with the requirements of the rule.. The judge failed to give him

time to obtain counsel (15 days); failed to advise him that if he did not

have an attorney in 15 days, a plea of xuxl not guilty would be entered;

and, at this appearance, the judge entered a plea right then.

Taylor v. State, 20 Md. App. 404 (1974); Williams ve. State, 220 Md.

180 (1959); Hill v. State, 218 Md. 120 (1958); Merritt v. State, 221 Ma.

118 (1959); Taylor v. 1, (1962).

The opinion states that Petitioner told Betty the exact location of

where the boy was buried, and she relayed this information to the police,

It states that two police officers took Betty there, or went with her,

and two went with Petitioner. One assumes that this means that all of them

went to that location to find the boy's body. However, certain things zust

be noted, from the records, so the court may understand the truth of the

matter because it reflects on voluntariness and waiver in the findings of

the lower court. Thus, the issue is significant.

(a) Two police officers Betty, and Petitioner tert Easton at 8:30 p.m

and it was shortly ther r tha ld the Police, Bacon, of

what Petitioner had told her.

(») This was Wednesday night, and the boy's body was not found until the

morning of Thursday. Since this was the case, it is clear that the

Petitioner did not give the exact location of the boy's body.

(c) On Thursday, Petitioner was taken to the wouds alone, and after more

searching the body was found by the police. No-one considered that

the Petitioner might have told Betty that simply because he wanted

to ease her mind, because she wanted everything to be over, though

the information was fasle.

10. (Slip Op. 25) Because Appellant assert the contrary, we preface this

issue by noting that the admissibility of the statements made by Appellant

to Betty Larmore is not subject to constitutional standards of voluntarine:

There is no contention ‘that Betty Larmore was a police agent. There

is the citation, Brown v. State, 10 Md. App. 462, 472-473 (1970) used to

show that an overheard statement may be used at trial, because neither of

the participants of the conversation was acting under orders from the polic

to make the other talk.

10A. Again, it is ouite evident that. the lower court failed to consider al]

of the available records and testimony to help with their. decision. That

the situation in the instant case is different from Brown, Supra, and the

case of Hoffa v. United States, 385 U.S. 293 (1966), may be seen from the

record and the testimony of Betty Larmore.

(a) Tc.154-55, 162, 175-76,When Betty came to the barracks, before seein;

the Petitioner, the police asked her to get the Petitioner to consent to a

lie detector test and to confess about Rusty. Before she went in to see

the Petitioner in the Krause incident, the police asked her to get him to

confess, because he trusted her. ;

(bo) In each incident, the officers who asked Betty to do these things

knew that there were police in the room with Petitioner, so it can be

reasonablt assumed that they wanted those officers to overhear anything

that the Petitioner might say to Betty in response to her questioning and

prompting.

This court has ruled that the question of admissibility does not rely

on the fact that a person to whom the statements are made is not a law

enforcement officer, rather, the question is answered on the basis of the

"police participation" in gaining the statements through a police "agent",

a citizen whom the police have directed to question a suspect in order to

aid the police in their investigation.

In the book, 'A Citizens Guide to Legal Rights', J. Shane Creamer, a

chapter deals with this very thing in (Petitioner believes) Alderman, or

Alderiso. See also, United States v. Fannon, 556 F. 2d. 961, 965 (9th Cir.

1977).

The factual evidence itself clearly indicates that Betty Larmore vas

. . “J

37.

a police “agent", acting for the police to’aid them in their investigation

in both the Marine and Krause issues.

ll. (Slip Op. 27-34) The lower court's opinion is that the viewing of the

body alone is not sufficient coercion to induce a statement; admitting

though, that this action was intended by the police to elicit some kind of

statement or confession. Maryland's highest courts condone the procedure

of having a suspect view the "subject matter", even while admitting that

there is a great difference when the subject matter is heroin on the one

hand and the dead body of a victim on the other.

The lower court states that "A victim's remains would no more coerce,

compell, or improperly induce an innocent person to confess to a murder |

that he did not commit than a heroin display would coerce, compel, or indues

improperly an innocent person to confess to owning narcotics that he did

not possess.

The court also states that coercion depends not only on pressure, but

on the reaction created by the pressure as well, and decided that all of

the circumstances pointed to a finding that Petitioner could not be effected

- by the viewing of the body.

11A. Such a practice as viewing the body at the murder scene may well have

a serious traumatice effect on the person doing the viewing, and though the

lower court maintains that such a viewing would not cause an innocent person

to confess to the murder, that opinion fails to take two important things

into consideration. First, there is a predjudicial assumption that the

person doing the viewing is guilty (Slip Op. 35). Second, such a viewing

may very well be very traumatic and more dangerous to an innocent person

who does the viewing, and though it may have a purpose of eliciting some

comment or confession, it is the protection of the innocent that prompts

the opinion that "law enforcement officers should use more sophisticated

methods of extracting confessions." State v. Peterson,75 A. 2d. 368 (Maine

1950); State v. Crittenden, 36 So. 2d. 645 (La. 1948), Williams v. State,

22 So. 2d. 821 (Fla.1945); Cavazos v. State, 172 S. W. 2d. 348 (Tex.1943).

Another thing that the lower court fails to consider is that, at the

time of the viewing the Petitioner was still an innocent person, and more

particularly important, an innocent person who had been denied counsel, as

well as been the victim of considerable illegal conduct by the police. As

it may very well have been a belief that the police were not going to make

any effort to obey the law that prompted the subsequent action, it must be

admitted that there was sufficient coercion to render any waiver or state-

ment invalid, because, until the statement, the police were dealing with a

person who was innocent. The fact that his rights had been violated, and

va Oe eS Ee: Pa ee ge EM

AS.

the fact that there was no probable cause to hold Petitioner in connection

with Rusty Marine, and the fact that the forced viewing was prompted by

the police inability to odtain a confession otherwise, make it clear that

there was sufficient evidence to support the contention that the statement

and the waiver were invalid. |

The court must admit that even the will of the strong, intelligent,

and knowledgable, may be overcome by the pressures exerted by the police

misconduct and inaction, particularly where the Petitioner, admittedly,

is well aware of the law and police procedures. Such a person may well be

intimidated to a greater extent than the illiterate because he knows what

should be done, and when it is not he may well feel completely helpless.

SYNOPSIS

Petitioner has shown. with sufficient evidence, that the lower court

has used tainted circumstances for it's finding of voluntariness and

waiver. Prior to the circumstances there were illegal arrests; there were

violations of State law and procedures; and, there were violations of the

Constitution, involving Petitioner's rights. |

Petitioner has shown, with sufficient facts, that he requested counsel

numerous times, and the police failed to cease questioning, even though

these requests were well within the guidelines of the rulings, decisions,

and mandates of this court.

Petitioner has shown that he did not: wish to discuss the Marine case,

contrary to the testimony of Lt. Keating.

Petitioner has shown that the testimonies of Keating and Luce are, in

fact, contradictory, and that they should not have been used to help show

either voluntariness or waiver.

Petitioner has shown that he was held without probable cause, and, he

was extremely predjudiced by the illegal delay which violated Maryland's

procedures, Johnson v. State, Suvra.

Petitioner has shown that the lower court could not have reviewed all

of the records available to support their findings.

Petitioner has shown that Miranda was triggered by the circumstances

in this case, and that the lower court did not consider this or other such

significant facts in reaching their findings.

Petitioner has shown that the issue of the offer of the phone, used to

refute Petitioner's Miranda contentions, was a moot issue, because of the

fact that Miranda effectively "cut off questioning" and Petitioner was not

obligated to call an attorney so the police could continue to question him

about something he did not want to talk about.

Petitioner has shown, by sufficient evidence from the witness who was

the one who obtained statements from the Petitioner, that she was acting

as a "police agent" because of the fact that there was participation by

the police in the obtaining of the statements.

Petitioner contends that he has provided adequate evidence to support

his contention that the lower court used extremely tainted circumstances

in their findings, and, that the lower court was remiss in their duty by

failing to resolve significant issues that reflected upon the circumstance:

that the court used. Further, Petitioner contends that he has shown, with

adequate evidence, that there were sufficient reasons for the lower court

to grant Petitioner a reversal, and, because of the illegal arrests, even

perhaps a d&smissal of the charges against hin.

II. THE TRIAL COURT ERRED IN SENTENCING PETITIONER

TO LIFE IMPRISONMENT WITHOUT POSSIBILITY OF PAROLE.

Maryland Annotated Code, Art. 27, Sec. 643(B)(b), provides that any

person who has served three seperate terms for violent crime convictions,

shall be sentenced to life imprisonment without possibility of parole.

Petitioner contended that the word "served", as applied here to the

statute, means that a person has completed three terms of confinement for

violent crimes.

Petitioner contends that, in interpreting statutes the plain meaning

of the statute must be effectuated. Further, a statute that is penal in

nature must be sttictly construed, State v. Fabritz, 276 Md. 416, 421-422,

348 A. 2d. 275 (1975). Applied to the instant case, it is clear that the

term "served" has only one meaning, i.e., service that was accomplished

in the past. The third confinement here is in the present, not the past,

and therefore may not be the basis for the imposition of a mandatory

life sentence.

The same result is mandated by means of applying the rule that it is

the legislative purpose. "The cardinal rule in the construction of statutes

is to effectuate the real and actual intention of the legislature." Fabrits

supra at 421. In this case the legislature made its purpose clear at the

time it originally enacted the statute:

"Por the purpose of requiring the imposition

of a mandatory sentence of life imprisonment

for any person convicted of (a felony) certain

crimes subsequent to that person having served

three seperate terms of imprisonment as a re-

sult of three prior (felony) convictions for

one of these crimes ,n 1975 Md. Laws, Ch 253

e 9 eo

YO.

Any doubt that could conceivably exist in the use of "served" is

resolved by the promulgation of the purpose: to apply a mandatory sentence

to persons convicted of na »d crimes "subsequent to that person having KK

served" the required prior confinements. Subsequent means, "Following in

time; comming or being later than something else; succeeding." (Emphasis

added). Black's Law Dictionary 1896 (4th ed. 1968) A "subsequent" con-

viction can only occur in the statutory scheme after the completion of the

third sentence. The plain meaning and purpose of Section 643B (b) is to

punish specially convictions after three prior confinements. The required

conditions simply do not exist in the instant case.

As additional support thereof, it may be noted that the rule (c) that

requires a mandatory sentence of twenty five years without parole makes

it clear that the legislature did not intend to become embroiled in the

confusion and complexity of consecutive sentences.

Additionally, as the lower court points out, Petitioner is a parole

violator from his second term in California, and therefore, he would not

have completed his second term, which was used as one of the four to make

the mandatory sentence applicable. In as much as the trial judge in the

instant case did not note that the third sentence was not consecutive to

the second, he erroneously applied the mandatory life sentence,

It may be noted that the recent case in Texas, concerning a mandatory

life sentence, was upheld by this court, and, in that case the person had

completed three prior sentences. The mandatory sentence was not applied

in a consecutive manner.

Further, it may be noted, from the records, that Petitioner had not

been informed that the State intended to proceed with an enhanced sentence

against him, as is required by the law. It was just as the judge was told

by the prosecutor about the enhanced sentence that Petitioner knew of it,

and, regardless of whether or not Petitioner's lawyer had not informed him

of this fact, it is the duty of the prosecutor to make sure that the

person to be so proceeded against has notice of that fact in a specified

time limit. The purpose of notification is so that the defendant may then

prepare his defense against such a sentence. Failure to notify denies the

person due process and equal protection.

Because the lower court failed to consider these facts, and has made

a ruling that is not consistant with the purpose of the legislature in

regards to the mandatory sentence applied in the instant case, Petitioner

contends that this court should issue certiorari and remand the case to

the lower court for a sentence consistance with the law, but, not to be

that of life imprisonment without possibility of parole.

a

IIl. THE TRIAL COURT ERRED IN ADMITTING THE

TESTIMONY OF SGT. GRIFFITH INTO EVIDENCE

AT THE TRIAL.

The lower court states that there was no testimony before the jury

relating to the polygraph examination, and, that Akonom v. State, 40 Md.

App. 676 (1978), is totally inapposite. Further, no issue was raised as

to the coercive effect it may have had as a tool psychological inducement

to make a confession.

In the first pleace, Petitioner maintains that the contentions of the

Petitioner are that, the testimony of Sgt. Griffith, as to statements made

to him by Petitioner, and portions of the testimony of Trooper Gray, are

the products of the polygraph examination, that is, the statements were

obtained while Petitioner was undergoing the examination, and as such, the

results of that examination (statements) are inadmissible because they are

unreliable.

In the second place, Petitioner contends that the statements taken

during the polygraph examination are inadmissible because of the illegal

conduct and actions of the police preceeding the polygraph examination

because they violated Petitioner's rights to such an extent that evidence

obtained, subsequent to these violations, is the poisoned frhit of those

violations. Wong Sun v. United States, Supra, Brown v, Illinois, Supra;

Canal Zone ve Gomez, Supra.

As to the evidence before the jury in relation to the statements of

Petitioner being obtained by the polygraph examination:

(a) (Slip Op. 23) Petitioner was taken to Easton for the polygraph

examination. From Griffith:"...elected to coutinue with the test and

to continue discussing the matter with the police."

(bo) Ta. 76, Griffith: Mr. Leuschner advised that he did wish to talk to

me in reference to this case.

(c) Tae 92, Tpr, Gray: He was turned over to Sgt. Griffith, the polygrap!

examiner. Around 6:30 the evening of the 2nd of November I entered

the polygraph room. Mr. Leuschner made statements that in fact he

had killed Troy Krause.

From a reading of the testimonies, it becomes quite clear that the

testimony of Sgt. Griffith concerned the statements that were made during

the polygraph examination, and, part of Trooper Gray's testimony related

to what he heard in the polygraph room while Petitioner was taking the

polygraph examination. Even though the examination tapes and records of

the examination were not introduced at trial, it was evident that these

statements were given to Griffith during the examination because this is

his sole duty for the Maryland State police at Easton. There can be no

doubt that what he testified to was what he had gained during the time of

the examination of Petitioner. ;

= ' UA,

As to coercion that prompted the Petitioner to submit to a polygraph

- ~ test in Easton.

(a) Tc. 161, 163, Betty testified that Petitioner told her that he did

not want to take a polygraph test, he wanted a lawyer, but, after

he had talked with a lawyer he would do what the lawyer advised.

(b) Ta. 179, Hornung testified that when he asked Petitioner to take

the poly he test, he said that he would like to consult with a

lawyer first.

(c) Ta. 163, Betty’ testified that Petitioner told her that the police

said that they would get him a lawyer if he took the polygraph test.

Again, if Petitioner, because of his. knowledge of the law, felt that

the police, who had shown no desire to obey the laws, would only get him

a lawyer if he complied with their wishes, or felt that compliance with

police desires was the only way he could gain his rights, then he was, in

fact, coerced, and the waivers and statements would be admissible only if

they were free of such coercion, and free of any Fifth Amendment violation

United States v. Cella, 568 F. 2d. 1266 (9th Cir. 1977); Kirby v. Illinois

406 U.S. 682, 689 (1972); Brower v. Williams, 430 U.S. 387 (1977).

Because the lower court failed to resolve this issue, and failed to

maintain a consistant ruling in accordance with previous decisions and

rulings, thus, depriving Petitioner of his constitutional rights, it is

contended that this court should grant certiorari and the relief that is

applicable to the issue herein.

CONCLUSION

Because of the reasons and arguements stated herein, supported by

adequate facts. that are available in the records, Petitioner contends that

this honorable court should grant certiorari and the appropiate relief.

Respectfully submitted,

J

J

Ellwood L. Leuschner, Sr.

Petitioner

146397

954 Forrest Street

Baltimore, Md. 21202

I, Ellwood L. Leuschner, Sr., do hereby certify that on

this[i{yday of surt>/ 1980, a true and correct copy of

the foregoing petition was mailed to the Attorney General

of Maryland.

-

Ellwood L. Leuschner, Sr.

ELLWOOD LEROY LEUSCHNER, SR.

STATE OF MARYLAND

ORDER

RECEIVED

In the JUL 17 1991

Court of Appdalarrict of THE CLERK

SUPREME COURT, U.S.

of Maryland

Petition Docket No. 176

September Term, 1980

(No. 945 September Term, 1979

Court of Special Appeals)

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 public interest.

Date: July 3 r 1980.

/s/ Robert C. Murphy

Chief Judge

‘IN THE COURT OF SPECIAL APPEALS

REPORTED

’ OF MARYLAND

No. 945

September Term, 1979

¢¢.5.¢' * es @ ®

ELWOOD LEROY LEUSCHNER

STATE OF MARYLAND

ey ea SX

Filed: April 14, 1980

sw

et

Elwood Leroy Leuschner was a multiple offender felon who

came to Maryland as a fugitive from California justice. His

atrocities there were of such nature that his wife by petition

alleged him to have been a sexual psychopath causing his commitment

to the Mendocino State Hospital which, after 90 days, decided he —

was not so deranged. Violating his parole after imprisonment,

Leuschner emigrated to Maryland where he subsequently kidnapped,

sodomized and murdered two young boys, 10-year-old Russell Marine

by stabbing and 9-year-old Troy Krause by strangulation,

Despite the attendant violence of crimes of that nature,

they are nonetheless clandestine. The witnesses are dead, most

physical evidence hidden or destroyed and the only living know-

ledge of it is locked in the mind of the perpetrator. Though he

may be suspected because of his past, he cannot be reapprehended

for prior crimes; nor can he be deterred from committing future

ones of like nature unless law enforcement officials can somehow

discover his misdeeds. The obvious, usually the best, and often

the only source, is the perpetrator himself and if a confession

can be extracted properly, prosecution and subsequent confinement

are reasonably a But if that route is followed, of-

ficials must tread carefully lest they trespass upon an accused's

constitutionally sacred grounds; that which provides him the .

1

"[A]dmissions or confessions ... when voluntarily and

reely made, have always ranked high in the scale of

. Macriminating evidence ...." Brown v. Walker, 161

.S§. 591, 596 (1896).

2.

privilege not to "be compelled in any criminal case to be a wit-

ness against himself ...." U. S. Const. amend. V.

To the extent that this privilege intrudes upon the in-

vestigatory aspect of criminal law enforcement, the privilege of

silence serves as a checkrein, but not necessarily an unjusti-

fiable restraint, upon police. Even the sanction for involun-

tarily extracting statements — evidentiary exclusion — is not

an unreasonable one in light of the questionable truthfulness of

that which was, or might be, coercively extracted by physical or

psychological means. However, as the Fifth Amendment right has

been interpretively extended, requiring procedural niceties of

interrogation formulized to fit precise patterns, it has more

and more become an impediment even to legitimate methods of law

enforcement. See Harlan, + oe dissenting in Escobedo v. Illinois,

378 U.S. 478, 493 (1964).

One such nicety was the blending of the Fifth Amendment

right not to speak, with the Sixth Amendment right "to have the

Assistance of Counsel for [one's] defense", Initially, the right

to counsel for one's defense presupposed an advocate at trial,

but was interpretively extended to apply pretrial for an in-

dicted defendant interrogated by the police in a completely

extrajudicial environment. Massiah v. United States, 377 U.S.:

201 (1964). Perhaps because the exclusionary rule was found

to be an effective deterent to opprobrious police conduct

in violation of the Fifth Amendment, any statement elicited in

the absence of counsel after indictment, regardless of how

elicited, was not admissible at trial against the accused. Ibid.

Soon to follow Massiah was Escobedo v. Illinois, 378 U.S. 478

(1964), which extended the right to counsel to a suspect — not

necessarily indicted — but from the moment the investigatory

phase of an interrogation becomes accusatory and focused upon the

suspect.

"[Where an] investigation is no longer a

general inquiry into an unsolved crime but

has begun to focus on a particular suspect,

the suspect has been taken into police cus-

tody, the police carry out a process of in-

terrogations that lends itself to eliciting

incriminating statements, the suspect has

requested and been denied an opportunity

to consult with his lawyer, and the police

have not effectively warned him of his ab-

solute constitutional right to remain

silent, the accused has been denied 'the

Assistance of Counsel’ in violation of

the Sixth Amendment to the Constitution

as ‘made obligatory upon the States by

the Fourteenth Amendment,’ Gideon v. Wain-

wright, 372 US [335 (1963)], at 342, 9

L ed 2d at 804, 93 ALR2d 733, and that

no statement elicited by the police dur-

ing the interrogation may be used against

him at a criminal trial." Escobedo v.

Illinois, 378 U.S. at 490-491.

Escobedo thus interwove the two rights, binding them together

with the sanction of exclusion. The final touch to this pat-

tern of protection was Miranda v. Arizona, 384 U.S. 436 (1966),

which provided the striated brocade of procedural niceties.

Miranda's holding first appears as simplicity itself,

6 . the prosecution may not use state-

ments, whether exculpatory or inculpatory,

stemming from custodial interrogation of

the defendant unless it demonstrates the

use of procedural safeguards effective

to secure the privilege against self-

incrimination." Id. at 444,

but it was the "procedural safeguards" that striated the holding,

"Prior to any questioning, the person

must be warned that he has a right to re-

main silent, that any statement he does

make may be used as evidence against hin,

and that he has a right to the presence of

an attorney, either retained or appointed.

The defendant may waive effectuation of

these rights, provided the waiver is made

voluntarily, knowingly and intelligently."

384 U.S. at 444,

The Fifth Amendment safeguard was abundantly clear, but that

paragraph also suggested that to exercise the Sixth Amendment

right to counsel might be a talisman serving to raise the Fifth

Amendment shield as well.

"If, however, he indicates in any manner

and at any stage of the process that he

wishes to consult with an attorney before

eer there can be no questioning."

Id, at 444-445.

The Court then jumps back to the Fifth Amendment.

"Likewise, if the individual is alone and

indicates in any manner that he does not

wish to be interrogated, the police may not

question him." Id. at 445.

Then, presumably because of the application of the similar sanc-

tions, the Court speaks as if the Fifth Amendment privilege and

the Sixth Amendment right are one and the same,

"The mere fact that he may have answered

some questions or volunteered some state-

ments on his own does not deprive him of

the right [Fifth] to refrain from answer-

ing any further inquiries until he has

. consulted with an attorney [Sixth] and

thereafter consents to be questioned

[Fifth].” Id. at 445 (emphasis added),

and seems to say that a subsequent waiver must be a knowing and

intelligent one.

For 45 pages after its initial deceivingly simple holding,

the Court sought to explain what was meant, apparently trying to

anticipate all situation possibilities of which it could con-

ceive. Again it alternately addressed the right and the

privilege in a single paragraph. With regard to the Fifth

Amendment privilege not to speak, it said:

"Once warnings have been given, the

subsequent procedure is clear. If

the individual indicates in any manner,

at any time prior to or during question-

ing, that he wishes to remain silent,

the interrogation must cease. At this

point he has shown that he intends to

exercise his Fifth Amendment privilege;

any statement taken after the person in-

vokes his privilege cannot be other than

the product of compulsion, subtle or

otherwise. Without the right to cut

off questioning, the setting of in-

custody interrogation operates on the

individual to overcome free choice in

oducing a statement after the privi-

ege has been once invoked." 384 U.S.°

at 473-474 (footnote omitted).

In the same paragraph it anticipated the exercise of one's

Sixth Amendment right to the assistance of counsel.

"If the individual states that he

wants an attorney, the interrogation

must cease until an attorney is present,

At that time, the individual must have

‘an opportunity to confer with the at-

torney and to have him present during

any subsequent questioning. Id. at

474.

‘Then it concluded those examples with the third possibility,

an amalgam of the two. |

"If the individual cannot obtain an

attorney and he indicates that he

wants one before speaking to police,

they must respect his decision to

remain silent.” Id. at 474 (emphasis

added).

But, contrary to some interpretations, even if both

rights are exercised by one upon whom an investigation has

focused, the Court did not by that fact alone command the in-

vestigators to cease all interrogation. It does, however,

place upon them a heavy burden if they wish to use in trial that

which they elicit thereafter —

"If the interrogation continues

without the presence of an attorney

and a statement is taken, a heavy bur-

den rests on the government to demon-

strate that the defendant knowingly and

intelligently waived his privilege a-

gainst self-incrimination and his right

to retained or appointed counsel." 384

U.S. at 475. |

And the Miranda Court went on to make unequivocally clear that

mere silence is not enough to overcome that heavy burden. Id.

at 475. |

Now, after more than a decade of experience, the Court

in North Carolina v. Butler, __ U.S. ___, 60 L.Ed.2d 286, 292

(1979), explained that the heavy burden of proving a waiver

need not be restricted to an express waiver by a defendant,

but -may be inferred by strong evidence of the circumstances of

the interrogation.

"That [waiver may not be inferred by

a silent record] does not mean that

the defendant's silence, coupled with

an understanding of his ‘rights and a

course of conduct indicating waiver,

may never support a conclusion that

a defendant has waived his rights.

The courts must presume that a defen-

dant did not waive his rights; the

prosecution's burden is great; but

in at least some cases waiver can be

clearly inferred from the actions and

words of the person interrogated."

With these questions of constitutional rights at issue

in the case before us, we have independently and carefully re-

viewed the entire record, Walker v. State, 12 Md. App. 684, 694

(1971). Silent it is not. Unlike the record in Tague v. Louisiana,

ee A 2 , 62 L.Ed.2d 622 (1980), the record here fairly shouts

at us, as it did to the trial judge, that this case is one from

which "waiver can be clearly inferred from the actions and words

of the person interrogated." Butler, supra at 292. In so con-

cluding, we scrupulously followed the directive of the Supreme

Court which stated in Butler, supra, that

“when the right so fundamental as that

to counsel at trial is involved, the

question of waiver must be determined

on ‘the particular facts and circum-

stances surrounding that case, including

the background, experience, and conduct

of the accused.’" Id, at 293 (emphasis

added).

- Butler's variations on the Miranda theme -

=

Elwood Leroy Leuschner was convicted in the Circuit

Court for Washington County of murdering and sexually offending

Troy Krause, a 9-year-old boy. He had previously been convicted

in Wicomico County of similarly destroying 10-year-old "Rusty"

Marine. See Leuschner v. State, 41 Md, App. 423 (1979). Having

exhausted his appeals in the Marine case, his appeal now is from

the Krause conviction. Both cases rested upon Leuschner's con-

fessions which were elicited almost simultaneously. His asser-

tions of improprieties in eliciting the confessions compel us to

review the entire circumstances and events leading up to both con-

_fessions. Following the Butler directive, however, we must first

consider - with whom we are dealing.

"background, [and] experience"

Flwood Leroy Leuschner, as we have indicated, has a

"background" and “experience" which show, by repetitive ex-

posure, an assimilated knowledge of judicial proceedings and

9.

defendant's rights. In California, as indicated by a four page

criminal record, he had been charged with two crimes against children,

two rapes, assault and robbery, firearms violation” forgery, burglary,

and was a registered sex offender who had been accused but not

proven to have been a sexual psychopath. Such background implies a

knowledge, whether gained from books or experience, that is a dis-

tinguishing circumstance to be considered in determining whether

his subsequent conduct was an intentional waiver of a known right.

: 1A

Cf. Escobedo, supra at 491-492.

“conduct of the accused"

For three months the Maryland State Police in Wicomico County had been

searching for a missing 9-year-old boy named Troy Krause, when in late October

of 1977, another youngster about the same age, named Russell (Rusty) Marine was

reported missing also. On October 29, 1977, while investigating Rusty's dis-

appearance, the State Police were told by Rusty's stepfather that his neighbor,

Elwood Leroy Leuschner (the appellant) had last seen Rusty walking down the

road toward a dirt pile near their residences. Trooper David Luce went to

Leuschner's trailer home and inquired about his recollection of last seeing

Rusty. Because Leuschner's niece had previously related that Leuschner had a

California criminal record, the trooper, upon returning to the barracks, entered

Leuschner's description in a National Crime Information Center Computer and

1A

Underscoring appellant's le acumen is a handwritten, well organized and

ouccintian “aagolaanotel tet submitted to his appellate attorney along with

a critique of that counsel's brief as previously filed. While there is no

provision in our law reco ing the right to file a per se brief supplementing

an already filed obviously ne real yh Oe superior brief by counsel,

we acknowledge it as sibortilie cok deccciitietion fede the rected thar Me,

Leuschner is legally knowledgeable and practically sophisticated in the

judicial processes. .

10.

found that he was wanted in California for a parole violation.

_ His criminal record was four pages long.

ee

* On October 30, 1977, in the early morning hours Leuschner

was arrested (because California would extradite on. the out-

standing warrants for parole violation) and immediately ad-

vised of his rights, which he admittedly understood. He

explained to the police that

"he had been communicating with Cali-

fornia authorities in an attempt to

get his parole problem straightened

out, that he only had one more year

left on his parole."

Upon arrival at the State Police barracks he was again informed

of his Miranda rights and at that time

"Mr. Leuschner stated that he wanted “*

an attorney to represent him on the

fugitive charges, as he did not want

to go back to California; he had a

lot to lose: he would lose his trail-

er, bis job, his girlfriend, and so

on." (Emphasis added). _

‘No questions were asked of him regarding the fugitive charge;

however, he was routinely processed and subsequently taken to

the Criminal Investigator's office. There he was questioned J

"concerning any information he may

have [had] as to the location of the. :

missing boy, Rusty Marine.".

It is significant to note that his previous request for

an attorney was expressly in regard to the fugitive charge only.

1l,

That request for counsel was "scrupulously honored" as a

triggering mechanism for his "right to cut off questioning"

in regard to the charge for which he was arrested; however,

he willingly agreed to discuss the missing boy. See Michigan

v. Mosley, 423 U.S. 96 (1975).

"Q. Did he say anything to you about

an attorney at that time?

A. Just for the fugitive charge.

7 What do [you] mean? What did he

say

' "A. He said he would like to have an

attorney represent him for the fugitive

charge, because he did not want to go back

to the State of California.

Q. Did he indicate to you at that time

whether or not he was willing to talk to

you about Rusty Marine?

A. Yes, sir. He was willing, and he

Stated that he would be perfectly willing

to talk to us; that he didn't have any in-

formation concerning the location of where

the missing person was.

Q. What, if anything, did he tell you

concerning an attorney with respect to talk-

ing to you about Rusty Marine? ;

A. He did not [sic“] say he did not de-

sire an attorney; he didn't need one.

Q. Did he say that?

A. Yes, sir, he did."

No questions were asked of Leuschner as to Troy Krause. The sole

concern was directed to the missing neighbor Rusty since Leuschner

was the last to have seen him. Presumably, little if any connection

was known between Leuschner and Troy.

2

It is apparent from a contextual reading of the record that

the word "not" was inadvertent either on the part of the witness

or the stenographer. The meaning was abundantly clear and ex-

pressed elsewhere that Leuschner did not want an attorney for any

purpose except the fugitive charge.

12.

During this time, Betty Larmore, the paramour with whom

appellant resided, came in and was permitted to be with, and

talk to, Leuschner. Leuschner relayed his request for the

retention of counsel to her. }

"Q. What, if anything, did they talk

Jean obtain an attorney for him.

Q. Did he indicate to her why he wan-

. . ted an attorney?

A. Yes, sir, because he did not want.

\Y to go back to California; that they would

I have too much to lose.

& Q. What, if any, response did Miss

Larmore give him at that time?

A. At that time she said that she

. couldn't do anything about getting an at-

A

v

about?

: A. Mr. Leuschner requested that Betty

<4

torney due to the day it was.

Q. What day was it?

A. That was Sunday. However, she

2 would go the next day and attempt to get him

one, I believe, I was answering the tele-

phone, but I believe at that time a piece

of paper with an attorney's name was written

down and given to Miss Larmore.

Q. By whom?

A. By Mr. Leuschner.

Other than passing the niece of

paper to Miss Larmore, did Mr. ieuschner

respond in any way to ‘her indication that she

would be unable to do anything about an at-

torney until the next day?

a: We, ie.”

Bi «

crapertad at IMS

Sespect

“T= 2@7-A73

vA

With M's Larmore still there, the conversation to determine the

whereabouts of the missing Rusty resumed. Discrepancies from

Leuschner's previous interviews became apparent but nothing ia

criminatory or accusatory with regard to Rusty was elicited.

Cigarettes, sandwiches and coffee were provided Leuschner around

13.

4:00 o'clock. From that time until 6:00 or 6:30, Lt. Keating, who

was called in to

. assist in the investigation of a mis-

sing person named Rusty Marine",

participated in the inquiry with the help of TFC Milton Hall. They

latin also familiar with the missing Krause boy, but again the focus

of investigation was exily upon Rusty. Out of an abundance of cau-

tion, prior to any discussion, they too advised appellant of his

Miranda rights, Leuschner never indicated a desire to stop talking

about Rusty; but about an hour after Lt. Keating arrived, he recalled that

"Mr. Leuschner said 'I would like to have an

attorney'."

Although the police were not yet aware that either of the boys

3

had been criminally abused, Lt. Keating again choosing to err, if at all,

3

Until the next day the police did not know if the boys were

alive or dead, safe or sound, restrained or free, or simply run-

a-ways. The police were simply seeking information about one of

the boy's whereabouts from the last person known to have seen him.

Although it is apparent that the police had more than a passing

interest in Leuschner and obviously had some suspicion that he was

not disclosing all he knew about the missing Rusty, in a criminal

sense he was not focused upon as an accused. Escobedo v. Illinois,

378 U.S. 478 (1964). Had Leuschner not been lawfully in custody as

a fugitive, he could not have been held or charged as an accused in

the absence of some probable cause by the police to believe he had

committed a crime. While one may be a suspect in an investigatory

sense, he could hardly be focused upon as an accused until a crime

with which he might have been connected is known to have been conm-

mitted — by someone.

But we are reciting tae "particular facts and circumstances"

upon which waiver must be decided if a criminal investigation had

begun to focus on the accused. We will continue selectively to

set out the testimony of what transpired, keeping in mind, ed,

the "fact" that there is as yet no crime known to the police as to

either boy — there not having even been a question asked regarding Troy.

14.

on the side of prudence, immediately acquiesced:

"Q. What, if anything, did you do

when he said that?

A. He was sitting right next to the

telephone, and I advised him: ‘Mr.

Leuschner, there's a telephone. You can

call fi attorney, or I'll call one for

you. ' 14]

A. The telephone was within arm's

reach of him, sitting on the desk.

Q. Did you make any comments to Mr.

Leuschner about the telephone?

A. Did I make any?

Q. Yes.

A. I told him that he could use the

telephone to call an. attorney, or I would

call one for him.

Q. Did he make any effort to use the

telephone?

A. No, sir.

Q. Did he ask you to call an attorney

for him?

A. No, sir.

Q. Did he make any effort to use the

telephone directory?

A. No, sir.

Q. ,What, if anything, occurred after

you advised him that he could use the

telephone?

A. He said he wanted to talk to Betty."

3 (Cont'd)

Consequently, appellant's Sixth Amendment right "to have the As-

sistance of Counsel for his defense" had not come to fruition. .

4

It should be noted that no case has as yet placed the burden of

providing counsel upon the police. It is the denial of a request

to permit am accused to contact counsel that violates the constitu-

tion, Crooker v. California, 357 U.S. 433 (1958), and Lt. Keating

obviously provided ample opportunity and assistance to effect that

purpose. Nor is there a per se rule as appellant would urge upon

us that the police must terminate any contact with an accused unless

counsel is present, once a request for counsel is made. Michigan v.

Mosley, 423 U.S. 96 (1975). it is unlikely that Maryland would

follow the dissent in Mosley, as be tr by appellant, since land

does not go that far even after indictment. State v. Blizzard, 278

Md. 556 (1976), but see Brewer v. Williams, 430 U.S. 387 (19773.

“i

AS «

Betty Larmore was in the next room and was immediately

brought in. Appellant voluntarily continued his conversation

without the instigation of any further questions being asked by

the officers.

"Q, How long did he talk to Betty

Larmore?

A, Fifteen, twenty minutes.

Q. Were you present in the room

when he talked to Betty Larmore?

A. Yes, sir.

Q. Do you know what they talked

about?

A. When she came into the room, I

didn't get all the conversation, but he

did ask her if she would contact an at-

torney or had she contacted an attorney.

Q. Do you recall what she responded?

A. No, I don't believe I can say

what she said. She might have mentioned

the name of an attorney, but I'm not sure."

A}though Trpr. Hall's testimony indicated that

. he did not desire to talk any fur-

ther; he wanted to contact an attorney",

Lt. Keating's testimony was clearly and pointedly that he did

not express any desire to terminate the inquiry,

"Q. Did he ever at any time during that

two or two and a half hours indicate at any

time a desire to cut off questioning?

Se, 26s."

but neither did “ express a desire to continue. He simply kept

right on talking.

5

Whether or not appellant expressly exercised his Fifth Amend-

ment privilege as well as his Sixth Amendment right, the trial

judge believed the testimony that no further questions were

‘asked, and we find no reason to believe the contrary.

16.

"Q. After he talked to Miss Larmore,

what, if anything, occurred?

% A. He just kept carrying on general

e conversation,

. With whom?

A. With Trooper Hall and myself, and

Betty was in there.

Bs How did the conversation get star-

ted

=< ~~. -A.-~s«xHe just kept talking that he didn't

know anything about Rusty Marine.

Q. How long a period of time trans-

pired from the time he stated that he

would like an attorney to the point where

he started talking again?

A. The conversation never stopped.

It was just a continuous conversation with

Betty when she came in, and he'd speak to

myself'or Trogper Hall.

Q. Did the conversation get back to

the subject of Rusty Marine?

A. Yes, sir.

Q. Did it ever leave the subject of

Rusty Marine?

A. No, sir.

Q. Between the time that Mr. Leuschner

stated that he would like an attorney and

the next time that he said anything to a

Police Officer, did either you or Trooper

Hall or any other Police Officer ask him

any questions?

A. No, sir."

But perhaps because of the discrepancies in Leuschner's

: narrations, Trpr. Hornung, who was also participating in the

search. for Rusty, asked Leuschner

" ... if he had any knowledge of the where-

abouts of Rusty, and at one point in the

conversation I asked him if he would be

willing to take a polygraph.

Q. About what time of day was that?

A. That would have been some time

after 7:30 p.m.

Q. What, if any, response did he make

to your suggestion concerning the polygraph?

~re

A. He said that before he would submit

to a polygraph examination he would have to

discuss it with an attorney,

Q. Did he indicate why?

A. No, he just said that he did mot ..,.

it was not his desire to take a polygraph)

without first consulting with an attorney,"

As a consequence nothing more was said to him about such a test.

"Q. Did you say anything further to him

at that time or thereafter concerning a lie

detector test?

No, sir."

And the day concluded by appellant being taken before a district

court commissioner for charging on the fugitive warrant where

once again he was provided his Miranda warnings.

These were the references made by appellant expressing

a desire for counsel. In the first instance he restricted his

request solely to the fugitive charge and volunteered to help

with the search for the missing boy, Rusty Marine. The officers

honored the second more general request by refraining from ques-_

tioning further and by offering assistance in Procuring counsel,

Appellant, instead of accepting the officers’ assistance, preferred

to. talk again with Betty whom he had commissioned to get him counsel

for the fugitive charge which she expressed an inability to do be-

cause it was the Sabbath. Prognosticating this precise possibility,

it will be recalled, Miranda said; =. __ ne

"If the individual cannot obtain an attor-

ney and he indicates that he wants one be-

fore speaking to police, they must respect

his decision to remain Silent." 384 U.S.

at 474 (emphasis added).

18.

But Leuschner did not indicate that he wanted counsel be-

fore speaking further to the police. On the contrary, without any

prompting, appellant's continued conversation of the subject under

inquiry, both to Betty Larmore in the presence of the police and

to the police, belied any inference that he was exercising his

Fifth Amendment right. As in North Carolina v. Butler, supra,

there was no doubt that appellant had been adequately, effectively,

and frequently apprised of his rights; the only question was

whether his conduct waived them. The test was first espoused in

Carnley v. Cochran, 369 U.S. 506, 516 (1962), and quoted in

Miranda, 384 U.S. at 475.

"'The record must show, or there must be an

allegation and evidence which show, that an: 1

accused was offered counsel but intelligent-47%

ly and understandingly rejected the offer.

Anything less is not waiver.'"

Here, as in Butler, the actions and words of the appellant clear-

ly implied a knowing and intelligent waiver of the rights of

‘which he was repeatedly advised and from his extraordinary past

experience must have been keenly cognizant.

Having found so clear a waiver of counsel, we note in pas-

sing that it is questionable whether Leuschner was entitled to

counsel (regarding the missing Marine boy) at the time of his re-

quest. Throughout that entire day there was no crime known for

which Leuschner could have been focused upon as a suspect. The

Sixth Amendment right is a right of an accused, at least in

jeopardy of a portending criminal proceeding. Escobedo extended

the right from one formally accused (Massiah, supra) to one focused

upon as a suspect. No case has yet provided the right as

stlencz <4 aul tttt1es

nibh "

19,

constitutionally available upon a missing person inquiry, absent

knowledge that a crime has been committed. If that were the law,

not only would legitimate methods of criminal law enforcement be

"unjustfully fettered" (as concerned Justice Harlan in Escobedo),

public protection would, in manacles and leg irons, be itself im-

prisoned. But even if he were entitled to counsel in regard to the

missing Rusty Marine, presumably even the police had made no connec-

tion between Leuschner and Troy Krause; no suspicion was expressed

or indicated by even a single question.

It would be judicially naive to infer that the police had

not focused their attention upon appellant in regard to Rusty, es-

pecially in light of Leuschner's record; however, the investigation

could hardly turn accusatory, even as to Rusty, until some knowledge

that a crime has been committed is apparent to the police. That

precise point

"when the process shifts from investiga-

tory to accusatory ... our adversary system

_—? to operate ...."" Escobedo, supra at

492.

psychological stimulation or psychological coercion

The next day, Monday, October 31, 1979, appellant was

brought from the jail where he had been confined as a fugitive,

back to the barracks for further questioning. He was advised of

his Miranda rights which he acknowledged having previously heard

and that he understood them. During this interview Lt. Keating 7

was advised that Rusty Marine's body had been found,

Leuschner was told but, still indicating that he didn't know

anything about it, expressed disbelief. Perhaps to convince him,

20.

“[w]e talked it over, Sgt. Luce and myself,

and it was my opinion that Mr. Leuschner

didn't believe anything we were telling

him, and I thought if we took him down

there and showed him that the body had

been recovered, then he'd know that we

knew what we were talking about or telling

the truth";

perhaps because ‘now the commission of a crime by someone had sur-

faced and suspicion focused on appellant, he was taken to the

scene. The reaction of appellant, now that it was known that a

crime had been committed, was itself sufficient to focus suspi-

cion upon him as an accused even absent his record.

"He had, by the time I saw him, had seen

the body, and had become very upset,

physically upset. I turned him away from

the body at that time and attempted to

calm him for several minutes. We left

very shortly thereafter."

Prudently, if not necessarily, no questions were posed at this

time.

"Q. Did you ask him any questions?

A. No, sir.

Q. Did he say anything of an incrin-

inatory nature?

A. No, sir. He was just very shaken."

Upon returning to the barracks appellant was permitted to

stop by his trailer and ask Betty Larmore to come with him. She

arrived a little after he did, and upon her entry into the room

appellant told her, in the presence of Hall and Keating, that

"he had taken Rusty". He continued to talk with Betty for five

or ten minutes and was then asked by police if he would give them

‘21.

a statement. Miranda rights were repeated and appellant then

signed a waiver form, witnessed by Betty Larmore, prior to giv-

ing the statement. Indeed, appellant himself typed part of his

statement which described that which he had done to Rusty Marine

culminating in the boy's murder. To this point, still no inquiry

had been made with regard to Troy Krause with whom we are here

concerned, and when Leuschner was now asked about him, upon con-

cluding the Rusty Marine confession, he at first denied any know-

ledge and again asked to see Betty Larmore.

the case we are considering

Now that the police were aware that Rusty had been mur-

dered by Leuschner, in light of the content of his confession,

he was apparently suspected of similarly disposing of the missing

Troy Krause. After bitiine to Betty Larmore, he called for Lt.

Keating and asked him, not for a lawyer, nor to recant his former

Miranda waiver, but |

"if Betty could give information with

reference to Troy Krause, would she be

entitled to the $5,000 reward."

This. conduct itself indicates that even at this crucial juncture

in the extrajudicial proceedings, the experienced and court-wise

accused was capable of conniving for additional benefits as pre-

requisite to further confession. When the Lieutenant replied that

he had no control over the reward offer, appellant

"turned to Betty and said words to the

effect that 'I took him, too.'

22.

"When he said that, Betty sort of cried

out 'No, you didn't’ or ‘You couldn't.'

He said ‘Yes, I took him." He started

telling me in her presence what had hap-

pened, where he picked him up on the road,

and the boy wanted a ride to the YMCA,

and as soon as the boy got in the truck

he made a right turn, he didn't know the .

mame of the road. He said shortly there-

after he made another right turn and came

to a place where he could pull off the

side of the road. He got out of the

truck, and he said he could see the roof

of an old home or a large home which was

red, The roof was red. He said he couldn't

see the whole house, he could just see part

of the roof. He said he pulled the boy

out of the truck and tied his hands and took

him a short distance in the woods, approxi-

‘ mately fifty yards and had sex with hin.

He said he held his hand over his mouth,

and when he left the boy was laying on

the ground.

I questioned him, too, as to whether

the boy was dead or alive, and he said he

didn't know; that he was just laying there."

Appellant then agreed to help the police locate Troy and

they left the barracks guided by appellant's direction. They

found nothing and returned just before midnight. Precipitously

appellant was presented to a commissioner and charged with the

murder of Rusty Marine.

The next morning Lt. Keating, Trpr. Lewis, Betty Lar-

‘more (whom they picked up at her home) and Leuschner again

“rode around", presumably with Leuschner trying to recall where

he had left Troy. Leuschner, apparently recalling the polygraph

discussion the previous day, asked then to take the test

23..

"to see if it would assist him and help,

and he wanted to do everything he could

to locate the Krause boy."

Appellant was then taken to the Easton barracks for the

polygraph test, after which he was returned.to Salisbury for

a bond review before "Judge Dallas" of the District Court

there. Judge Dallas not only advised appellant of his Miranda

rights but

"Thje advised him not to talk to the

police or anyone about this."

The next day, Wednesday, November 2nd, appellant was taken

back to Easton to continue his polygraph examination. The

examiner again advised appellant of his rights,

"at which time Mr. Leuschner advised me

that he was familiar with the rights and

further that he had been advised by Judge

Dallas to not to talk to the police and

not to take any type of test; however, he

wished to clear this matter up; he wished

to help locate the body of Troy Kruase;

and therefore elected to continue with the

test and to continue discussing the matter

with the police."

Appellant even had the police try to find him a hypnotist to help

him remember the location where he had left Troy, but they were

unsuccessful.

Upon returning from Easton, Leuschner rode with Betty in

the back seat. That night Betty called the officers and told

them that appellant had given her exact directions to Troy's body.

Two officers went with Betty; two others brought appellant into a

woods on a farm in the area. Finally, midmorning (Thursday,

<~ey

24.

November 3rd) Troy's body was found.

In the early afternoon an arrest warrant was obtained and,

in the presence of a public defender who had recently appeared for

appellant, was served upon him. He was promptly presented hefore

the district court judge. :

From our review of the circumstances it is clear, especially

in regard to the Troy Krause crime, when appellant requested counsel

on October 30th, appellant had not been focused upon as an accused

sufficiently to trigger his Sixth Amendment right’ to counsel.

Escobedo, supra. But ‘even if that were not so, it is equally clear

from his words and conduct that before confessing or even before a

single question was asked regarding Troy Krause, appellant, in writing,

waived his Miranda rights. Butler, supra.

peripheral Miranda issues

Although appellant contends that the Krause confession was

inadmissible because the Miranda advisements were not given between

the conclusion of his statement on Rusty Marine and the commencement

of his admissions as to Troy Krause, we think the contention a

specious one. Having obviously argued that the two were "connected

in appellant's mind" — a premise to which we had to accede simply

to address the Sovenetnns concerns — he can hardly now be heard to

argue that the dozen or so warnings given and the waiver signed just

prior thereto, were not valid, recalled and clearly understood by

appellant. Under the circumstances of this case, the vaiver was sO

interrelated by time and circumstance, Miranda warnings having been

repeatedly given by the same interrogators, there was no requirement

nor legitimate purpose to be served by again administering them.

Smith v. State, 20 Md. App. 577, 587 (1974), cert. denied, 272 Md,

748 (1974), cert. denied, 420 U.S. 909 (1975). ——

Finally, in the Miranda regard, appellant contends that

because no fugitive warrant was obtained pursuant to Md. Code,

Art. 41, §§ 28 and 28A, his initial arrest was illegal and the

statements were inadmissible as the fruit of such illegality.

Appellant having failed to raise this below has for practical

. purposes waived it on appeal. Md. Rules 736 and 1085.

- traditional concepts of voluntariness -

Betty Larmore

Because appellant asserts the contrary, we preface this

issue by noting that the admissibility of the statements made

by appellart to Betty Larmore, his paramour, is not subject

to constitutional standards of voluntariness. There is no .

contention that Betty Larmore was a police agent.

In Brown v. State, 10 Md. App. 462, 472-473 (1970), cert.

denied, 261 Md. 722 (1971), we found no fault even with per-

mitting an officer to testify to that which he had overheard

spoken between two inmates in a contrived setting in jail. We

' noted that:

"Here it is clear that the incriminating

statements were not the product of any

sort of coercion, legal or factual, physi-

cal or psychological. The conversations

of Brown and Montgomery were wholly volun-

tary. Nothing said by either was prompted,

As pointed out in appellee's brief, the record indicates com-

pliance with the statute in any case.

26.

inspired or solicited by Elliott [the under-

cover policeman] nor was it caused by or

the result of any questioning of either by

the officer. On the contrary the evidence

is that he never even spoke to them, They

simply talked without threat, promise or

inducement on the part of the authorities

in such circumstances that what they said

could be overheard. Elliott, in a position

to overhear, was under no obligation to close

his ears. As the Court said in Hoffa [v.

United States, 385 U.S. 293 (1966)], supra,

at 303, quoting with approval the words of

the dissenting opinion in Lopez v. United

States, 373 U.S. 427, at 465:

‘The risk of being overheard by

an eavesdropper or betrayed by an

informer or deceived as to the iden-

tity of one with whom one deals is

probably inherent in the conditions

of human society. It is the kind of

risk we necessarily assume whenever

we speak.'

We hold that the receipt of Elliott's testi-

mony with regard to the conversations of Brown

and Montgomery did not violate the Fifth Amend-

mend right against self-incrimination. See 3

Jefferson v. State, 228 Md. 331.

Even if the cell into which Brown and

Montgomery went to converse be considered

a constitutionally protected area, Elliott

did not intrude therein physically and there

was no electronic bugging. Nor was he in

any sense a trespasser by his position in

the tier aisle when he overheard the conver-

sations. The Supreme Court said in Hoffa,

at 302: ‘Neither this Court nor any member

of it has ever expressed the view that. the

Fourth Amendment protects a.wrongdoer's

misplaced belief that a person to whom he

voluntarily confides his wrongdoing will

not reveal it.' Certainly then, it cannot

rotect the wrongdoer voluntarily confiding

is beatae in such a manner that he can

be overheard by a third person legally in a

position to overhear. See also Lewis v.

United States, 385 U.S. 206." 10 Md. App.

a - “

ie

See also Leuschner v. Stave, 41 Md. App. at 429-434 (cert. denied,

__ Md. __ (April 23, 1979), cert. denied U.S. __ (October 29, 1979).

The exclusionary rule is simply not applicable as to

the statements made to Betty Larmore either in the presence of

the officers or out of their hearing; but because we will af-

firm the use of appellant's confessions to the police, that rul-

_ing is hardly necessary.

Go knek ts -~zo

Appellant contends that the first inculfatory statement

the viewing

he made to Betty Larmore and the police regarding Rusty Marine,

‘6: that "he had taken Rusty", was the involuntary product of a

psychological coercion emanating from the graveside viewing of

Rusty Marine's body, and as such was inadmissible, See State v.

Kidd, 281 Md. 32, 36 (1977, cert. denied, 434 U.S. 1002 (1977).

Quoting Combs v. State, 237 Md. 428, 435-436 (1965), he proceeds

to reason that

“where one confession is held to be in-

voluntary and inadmissible, the State

must overcome a presumption that the

improper influence which produced the

first confession is still tn effect un-.

til a cessation of that influence is

definitely shown, and the evidence to

overcome and rebuf such a presumption

must be clear, strong and satisfactory,

and any doubt on this point resolved in

favor of the accused." 7

z

See also Clewis v. Texas, 386 U.S. 707 (1967); United States

v. Bayer, 331 U.S. 532, 540 (1947); Jackson v. State, 209 Md.

390 (1956) ; Edwards v. State, 194 Md. 387 esta? Fried v.

State, 42 Md. App. 643 (1979) ; Brown v. State, 6 Md. App. 564

(1969); Wiggins v. State, 4 Md. App. 95 (1968) , cert. denied,

251 Md. 753 (1968); Keller v. State, 2 Md. App.

Fried, supra, makes it clear, however, that the taint doctrine

does not apply to mere Miranda violations.

28.

While appellant alleges several factors contributing to

the "psychological coercion", he discusses but one — "the act

of taking appellant to the grave cf Rusty Marine and showing him

the body", aggravated by "continuous questioning". He contends

that the six sessions on the first day of arrest (consuming ap-

proximately the same number of hours of interrogation) culmina-

ting in the act intending to shock a confession from the accused

the following morning, must, in combination, be seen da psycho-

logically coercive. He relies primarily upon a series of cases

in other suctediietione which have considered viewings of victims'

corpses and "found that this technique, which seems always

promptly to produce a confession, renders that confession invol-

untary. See e.g., State v. Peterson, 75 A.2d 368 (Maine 1950);

State v. Crittenden, 36 So.2d 645 (La. 1948); Williams v. State,

22 So.2d 821 (Fla. 1945); Cavazos v. State, 172 S.W.2d 348 (Tex.

1943) .""

We note initially that the mere viewing alone is by no

means sufficient "coercion" to induce an accused to confess in-

voluntarily. That which was viewed, of course, was the subject

matter .. Of the crime, the commission of which we will assume

- appellant was by then suspect. Showing him evidence of the subject

matter was obviously intended by the police to elicit information,

an investigative technique which has become a "standard procedure

of interrogation" condoned by this Court in Vines v. State, 40

Md.- App. 658 (1978), and the Court of Appeals affirming in Vines .

v. State, 285 Md. 369 (1979). See opinion dissenting on Miranda

grounds in 40 Md. App. at 672. In that case, Jasper Vines was

29.

convicted of possession of heroin. The heroin contained in

tinfoil packets, the ‘elite ‘aids of that crime, had been

legally obtained under warrant from Vines’ home and was dis-

played by the police to Vines, after he had invoked his Miranda

rights, to elicit an inculpatory admission.

This Court and the Court of Appeals both condoned that

police procedure, holding that it neither violated Miranda nor

consisted of involuntary psychological coercion. In regard to

the issue of voluntariness in the traditional sense, our

maiority's reasoning was adopted by the Court of Appeals.

""It is not disputed that shortly before

making the inculpatory disclosure, [Vines]

had been fully apprised of his right to

remain silent and that anything he said

. might be used aginst him in a court of

law. It is also undisputed that he under-

stood those rights. Merely because the

police entertained the hope. (not expressed

to |Vines}) that the display of narcotics

would produce an incriminating statement

does not mean that in allowing |Vinesj} to

view the display they were improperly com-

peiling, coercing, or inducing [Vines] to

speak. .. . Vines, 40 Md. App. at 661."

Vines v. State, 285 Md. at 380-381

(emphasis added).

Because of the western world's ingrained belief in the sanctity

of human life, the viewing of a child's cadaver recently exposed

in a shallow grave is psychologically more grotesque than a

viewing of heroin recently possessed by an accused; but .

both viewings “re purposed to the same end, i.e., to elicit a

confession. The viewing procedure itself is not conclusive of

SSS eee ee ee as noe

30,

involuntariness, Vines, supra. A victim's remains would no more

coerce, compel or improperly induce an innocent person to con-

fess to a murder that he did not commit than a heroin display

would coerce, compel or improperly induce an innocent person to

confess to owning narcotics that he had not possessed.

Of course, the statement in Kidd, supra, relied on by

appellant, that a confession may be rendered involuntary by either

psychological or physical coercion is constitutionally supported

by any number of Supreme Court opinions. Eg., Blackburn v. Ala-

bama, 361 U.S. 199 (1960); Fikes y. Alabama, 352 U.S. 191 (1957);

Watts v. Indiana, 338 U.S. 49 (1949) separate opinion; Upshaw v.

United States, 335 U.S. 410 (1948). The contemporary responsibility

of law enforcement officers to use more sophisticated methods of

extracting confessions makes our review of the circumstances

surrounding a confession more difficult because of the more deli-

cate judgments to be made. Spano v. New York, 360 U.S. 315, 321

(1959). Thus, the range of inquiry in this type of case must be

broad ana the Supreme Court insists that the judgment in each in-

stance be based upon the “totality of circumstances". Blackburn,

supra at 206. Whether psychological coercion exists depends not

only on a circumstance of pressure exerted but the effect of that

pressure vis-a-vis the power of resistance of the person con-.

fessing. Fikes, supra at 197.

"What would be overpowering to the weak of

will or mind might be utterly ineffective

against an experienced criminal." Stein

v. New York, 346 U.S. 156, 185 (1953).

“as

ete

31.

And as we conduct our independent review of the record, mandated

by the Supreme Court, see Walker v. State, 12 Md, App. at 694,

we are not restricted to that which is revealed at the suppression

hearing prior to admiss

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