# Petition — Leuschner v. Maryland

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 1014

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1740%3A1. Public record. Not legal advice.