Petition — Wantland v. Maryland

NOV 3 1980

OFFICE OF THE CLERK

SUPREME COURT, U.S,

ge 80-5640

Misc. No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

CHARLES MILTON WANTLAND,

Petitioner

Vv.

STATE OF MARYLAND,

Respondent

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

The petitioner, Charles Milton Wantland, who is indigent

and who has been found to meet the qualifications for representa-

tion by the Office of the Public Defender for the State of

Maryland, at the time of his trial and at appellate proceedings

thereafter, asks leave to file the attached Petition for Writ of

Certiorari to the Court of Appeals of Maryland without prepayment

of costs and to proceed in forma pauperis pursuant to Rule 46.

The petitioner's affidavit in support of this Petition

is attached hereto.

rc art

VA OF: y,

ee

*

- George E. Burns, Jr.

Assistant Public Defender for the

State of Maryland

800 Equitable Building

Baltimore, Maryland 21202

(301) 383-6123

Counsel for Petitioner

- 80-5640

w

Misc. No.

RECEIVED

NOV 3 1980

IN THE . 4

FICE OF THE CLERK

SUPREME COURT OF THE UNITED COURT, U.S.

OCTOBER TERM, 1980

CHARLES MILTON WANTLAND,

Petitioner

Vv.

STATE OF MARYLAND,

Respondent

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

AFFIDAVIT IN SUPPORT OF’ MOTION TO PROCEED

ON APPEAL IN FORMA PAUPERIS

I, Charles Milton Wantland, being first duly sworn, de-

pose and say that I am the Petitioner, in the above-entitled case;

that in support of my motion to proceed on appeal without being

required to prepay fees, costs or give security therefor, I state

that because of my poverty I am unable to pay the costs of said

proceeding or to give security therefor; that I believe I am

entitled to redress,

I further swear that the responses which I have made to

the questions and instructions below relating to my ability to pay

the cost of prosecuting the appeal are true.

1. Are you presently employed? Ni!

a. If the answer is yes, state the amount of your

salary or wages per month and give the name and

address of your employer.

te ee

b. If the answer is no, state the date of your last

employment and the amount of the salary and wages

per meee Ce ou received,

(ye, vtotvey VanudecCe , k

= : N 4 Ni Ale

- < “Er Te

2. Have you received within the past twelve months any

income from a business, profession or other form of self-employ-

ment, or in the form of rent payments, interest, dividends, or

other source? Lie gueer

a. If the answer is yes, describe each source of

income and state the amount received from each

during the past twelve months,

Nit Ni te

3. Do you own any cash or checking or savings account?

Ne ie

a. If the answer is yes, state the total value of

the items owned.

{\ A f7e

4. Do you own any real estate, stocks, bonds, notes,

automobiles, or other valuable property (excluding ordinary house-

hold furnishings and clothing)?

a. If the answer is yes, describe the property and

state its approximate value.

No nix

5. List the persons who are dependent upon you for

Support and state your relationship to those persons, j -' =

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties for

perjury.

c+\ is \. \ \\\ i \ “ ne

CHARLES MILTON WANTLAND

@- 2 «

Subscrived and sworn to before me, a Notary Public this

4 y day of Liplel-7 » 1980,

y

of ea. vA .

(% Oe § AE DI CIM E

CHARLES R. SIMONSEN

Notary Public

Let the applicant proceed without prepayment of costs or

fees or the necessity of giving security therefor.

eo 3 a

a

80-5640

Misc. No, | RECEIVED

\} Nov 31980

IN THE OFFICE OF et US.

SUPREME COURT OF THE UNITED STAT

OCTOBER TERM, 1980

CHARLES MILTON WANTLAND,

STATE OF MARYLAND,

Petitioner

Respondent

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

PETITION FOR WRIT OF CERTIORARI

Deborah K. Handel

Chief, Criminal Appeals and

Correctional Litigation Division

Office of the Attorney General

One South Calvert Street

Baltimore, Maryland 21202

(301) 659-4022

Counsel for Respondent

George E. Burns, Jr.

Assistant Public Defender

State of Maryland

800 Equitable Building

Baltimore, Maryland 21202

(301) 383-6123

Counsel for Petitioner

Of Counsel:

Michael R. Malloy

Assistant Public Defender

800 Equitable Building

Baltimoré, Maryland 21202

(301) 383-6010

RECEIVED

80-5640

NOV 3 1980

Misc. No.

ICE OF THE CLERK

GTPREME COURT, U.S.

IN THE ;

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

CHARLES MILTON WANTLAND,

Petitioner

Vv.

STATE OF MARYLAND,

Respondent

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

PETITION FOR WRIT OF CERTIORARI

Petitioner Charles Milton Wantland prays that

a writ of certiorari issue to review the judgment of

the Court of Special Appeals of Maryland, entered on May 9,

1980, and the order of the Court of Appeals of Maryland

denying certiorari, entered on September 4, 1980.

QUESTIONS PRESENTED

1. Where the Petitioner, following his arrest,

manifested his belief that only written statements could be

used against him, the police failed to correct the Petitioner

and the Petitioner thereafter made an Oral confession, was

it a denial of the Petitioner's constitutional rights to

use that oral confession against him at trial?

2. Does the doctrine of "taint" apply to Miranda

violations?

TABLE OF CONTENTS

Question Presented eeerereeeeeeeeeeeeeeeeeeeeeseeeeeees

Table of Contents and Table of Authorities obvi dees

Opinion Below eeoreereeeeeeeeeeeeeeeeeeeeeeeeseeeeeesers

ote Jurisdiction eeeeeeeeeeeeeeeeeeeeeeseeeseeeeeeseseese

Appendices:

denying certiorari

’

742 (Rehnquist,

, 454 Pa.

Reason for Allowance of the Writ .......

TABLE OF AUTHORITIES

-

Constititional Provisions eeereeeeeeeeeeeeeeeeneeeeeese

Statement of the Case eereeree eee eee eeeeeeeeseeseeeeeee

Opinion Below eeeeeereeseeeeeeeeeeeeeeeseeeeeeseees

Order of the Court of Appeals of Maryland

Constitutional Provisions Peah eee ne wiah wees bss eke

— U.S. ay 100 5.Ct.

J., Circuit Justice) (1980).

422, 311 A.2d

572 (1973) eeoeeeeeeeeeeeeeeeeeseeeeseseseeeooe

» 475 Pa. 365, 380 A.2d 765

PEE SESE ROCs hORBNeNEe Eh aes bin bind ees eee

Pare v,. Michael C., 439 U.S. 1310 (1978)

Harris v. Riddle, 551 F.2d 936 (4th Cir., 1977) ....

Harrison v. United States, 392 U.S. 219 (1968) .....

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

North Carolina v. Butler, 441 U.S. 369 (1979) ......

» 191 Colo, 390, 553 P.2d 763

gs capped Le eee Oe ET OE eee a a Ca

, 56 111.2d 476, 309 N.E.2d 11

(1974) SPSCSCHHCHHSHSOCHSCHOHESETOHOHOHCOCOHOOCECEEOHEOCEOOCS

+ 86 Mich App. 272, 272 N.W.2d 623

(1978) SCOHSCHCHOHSHEEOHOSEHECHOHOCEOSCHOECOEH OEE OEEESCS

, 24 A.D.2d 897, 274 N.Y. S.2d 417

(1966) SCOHCHSHHCHSHSSCHOHCEHSOSHOHOSHOSHEHEOHEOOOEECEESES

, 91 Nev. 17, 530 P.2d 1119

(1979) eereeeeeeseeeeeeeeeeeeeee

South Dakota v. Long, 465 F.2d 65 (8th Cir.,

1972) COPS SOHPOHECHHSHHCCOEOCEEOHHSESEOO OC LOCESOOEES

12

ll

, 37 Ohio St.2d 21, 306 N.E.2d 409

(1974) Cee eeeeeeeeseseeeseeeeeeeeeeeeeeeecoeoces 8

, 52 N.J. 35, 243 A.2d 240

[1968] eeoeeeeeeeeeeeeseeeeeeeeeesereseeeeeoeoe 10

, 52 N.J. 352, 245 A.2d 339

(1968) eoeereeeeeeeeeeeeeeeeeeeseeeeeeseeeeeece 8

, 104 Ariz. 174, 450 P.2d 364

(1969) eooereeeeeeee eee eeeeeeeeeeeeeeeeeeeees ll

, 93 N.M. 257, 599 P.2d 1054

(1979) eeoeeereeeeeeeeeeeeeeeeeeeeeeeeneeeeeee 12

State v, Young, 344 So.2d 983 (La. 1977) ..cccccccce 12

Tague v,. Louisiana, 100 S.Ct. 652 (1980) .........e. 7

United States v, Bayer, 331 U.S. 532 (1947) ........ ll

United States v. Nielson, 392 F.2d 849 (7th Cir.,

1968) SSSSHOSSHHOCHSCHSCHCHSCHHCHCOOSHECH OHO EES OSOLEE 8

e —— Md. App. ___, 416 A.2d

LEE Oh Aide Cimon Web ee 44 aoe 4 6k0 6UNeake 4

OPINION BELOW

The opinion of the Court of Special Appeals of

Maryland is included as Appendix A. It is reported at

—— Md. App. __, 416 A.2d 265 (1980).

JURISDICTION

The judgments of the Court of Special Appeals of

Maryland and the Court of Appeals of Maryland were entered

on May 9, 1980 and September 4, 1980, respectively. The

jurisdiction of this Court is invoked under 28 U.S.C.

Section 1257 (3) (1976). '

CONSTITUTIONAL PROVISIONS

The text of the following provisons are set forth in

Appendix C:

U.S. CONST., amend. Vv

U.S. CONST., amend. XIV

STATEMENT OF THE CASE

Petitioner moved pretrial to Suppress certain oral,

-3-

inculpatory statements, and the motion was denied after a

hearing. Petitioner was subsequently convicted of first

degree murder, first degree sexual offense, and carrying a

dangerous weapon openly with intent to injure and was

sentenced to two consecutive terms of life imprisonment and

a consecutive three-year term. Petitioner appealed to the

Court of Special Appeals of Maryland, contesting, inter

alia, the denial of his motion to Suppress. That court

affirmed the judgment of the court below. Wantland vy,

State, __. Md. App. ___, 416 A.2d 265 (1980). (App. A.).

A petition for a writ of certiorari was filed in the Court

of Appeals of Maryland and was denied on September 4, 1980.

(App. B.).

The facts relevant to the issues involved in the

case at bar were set forth in and are adopted from the

opinion of the Court of Special Appeals.

"At approximately 10:30 p.m. on Sunday,

June 18, 1978, Hatfield and another police

officer went to the Berger Mansion where

they found Wantland. The officers requested

that Wantland accompany them to the Bureau of

Criminal Investigation (B.C.I.). The avowed

purpose for requesting Wantland to accompany

them was to learn what Wantland knew about the

crime. Wantland went with the officers. When

the trio arrived at the B.C.I. facility,

° Wantland was taken to ar ‘Interview Room’ at

sometime shortly after 11 p.m. No restraints

were placed upon him, and he was not given

the Miranda warnings. Hatfield, during the

next five hours, succeeded in getting Wantland

to make a six page statement. The statement

was suppressed by the circuit judge on Wantland's

motion. [footnote omitted].

"Hatfield left the Interview Room at the conclusion

of the interview, around 3:30 a.m., June 19, 1978,

Corporal T. R. Tucker entered about one-half hour

thereafter. Tucker informed Wantland that he,

Wantland, was under arrest for the murder of Donnie

Henley. Tucker related to th court that he ‘read

-+.{Wantland]) a waiver of rights form' and recorded

Wantland's answers to the questions printed there-

on. Wantland was then handed the form to read and

sign.

“The printed form declared that Wantland understood

the warnings. With respect to the

-4-

question of whether Wantland was willing to make

a statement without the presence of an attorney,

Wantland reponded, 'No.'

“Notwithstanding Wantland's express negative reply

to the Miranda litany, Tucker recounted, Wantland

continued to talk. The officer questioned Wantland

in order to determine whether Wantland was willing

to make a statement even though counsel was not

present. According to Tucker, Wantland answered

that he wanted to talk.

"Prior to any conversation regarding the offenses

forming the gravamen of this appeal, Wantland was

permitted to use the toilet facilities, as well as

to purchase some cigarettes. Upon returning to

the Interview Room, Wantland explained to the

officer the reason for the negative response to the

question on the waiver of rights form relative to

counsel. He related that at the time of a prior

arrest, ‘he made a statement to the police and it

was in-error an it was admitted at the time of

trial... .' Wantland made clear that his objection

was to making a written statement. Wantland

apparently was of the belief that in order to be

admissible as evidence a statement had to be in

writing. Tucker did nothing to alter or correct

Wantland's misbelief, but, instead, acting on the

[petitioner's] desire to *talk,' began his interroga-

tion. The trial court denied Wantland's attempt

to suppress that statement.

"The third oral statement was taken the following

afternoon by Corporal M. K. Morrissette,

Morrissette told the court that he was assigned to

take Wantland to the Prince George's County

Hospital so that a physician could take samples of

the [petitioner's] saliva and blood. While at the

hospital, Wantland complained to Morrissette that

no one would listen to [him]. Morrissette

Suggested that he would take a statement following

the medical procedure,

"At the completion of the sampling, Wantland was

transported back to B.C.I. by Morrissette. There,

Prior to any questioning, Wantland was again ad-

vised of his Miranda rights. [Petitioner] responded

that he was willing to make a Statement to the

officer without benefit of counsel. It was clear

from subsequent remarks that Wantland made the oral

Statement under the misconception that it could

not be used against him. The circuit judge, over

objection, admitted the statement into evidence.

“The fourth and final statement was made by

[petitioner] to Corporal Rowzie, the coordinator ot

the investigation. Rowzie told Judge Levin that

on July 5, 1978, he went to Prince George's

County Detention Center in order to Speak to

Wantland. Before there was any contact between

Rowzie and the appellant, an unidentified cor-

rectional officer explained to Wantland that

he was entitled to have his attorney present

during any interview with the police officer.

-§-

A form entitled "Detainee Waiver,' the text of

which purported to be a waiver of that right,

was presented to Wantland, who signed the form.

"Rowzie recounted that he then advised the

[petitioner] of the full panoply of °

Wantland was asked if he understood those rights,

and he replied in the affirmative. According to

the officer, the [petitioner] then stated that he

already had an attorney, but that he did not

desire the attorney's presence during the inter-

view... Rowzie questioned the [petitioner] and

took an oral statement which was admitted, over

objection, at trial." (App. A at 9).

The federal questions involved are whether there was a

proper waiver of fifth amendment rights prior to the giving

of the statements, and, if at least the first statement was

illegally obtained, whether it tainted Subsequent statements.

KEASONS FOR ALLOWANCE OF THE WRIT

The fundamental principles against which the

conduct in this case must be measured can and has been

Stated with clarity. After the required rights have been

given:

"If the interrogation continues without the

presence of an attorney and a statement is

taken, a heavy burden rests on the govern-

ment to demonstrate that the defendant

knowingly and intelligently waived his

privilege against self-incrimination and

his right to retained or appointed counsel.

This Court has always set high standards of

proof for the waiver of constitutional rights.

, 304 U.S. 458 (1938),

and we re-assert these standards as applied

to in-custody interrogation. Since the State

is responsible for establishing the isolated

circumstances under which the the inter-

rogation takes place and has the Only means

of making available corroborated evidence of

warnings given during incommunicado inter-

rogation, the burden is rightly on its

shoulders." (citation omitted).

Ys. Arizona, 384 U.S. 436, 475 (1966).

Unfortunately, however, though the rule is clear,

its application has nevertheless caused courts considerable

difficulty. Thus, in the last two years this Court has

reversed three state court decisions for either requiring

too much or too little of the prosecution in meeting its

burden under Miranda. See Tague vy. Louisiana, __

U.S. __, 100 S.Ct. 652 (1980); North Carolina v. Butler,

441 U.S. 369 (1979); Pare v, Michael C., 439 U.S. 1310

(1978). See generally, California v. Braeseke, __

U.S. __, 100 S.Ct. 742 (Rehnquist, J., Circuit Justice)

(1980). The instant case presents the issue in a precise

form, going to the essence of the Miranda warnings,

therein offering the opportunity for this Court to resolve

what has become an increasingly perplexing legal problem.

The facts as found by the Court of Special

Appeals make it clear that Petitioner was advised of his

Miranda rights and initially declined to answer

questions. Purther, Petitioner demonstrated and the police

understood that petitioner thought that only written

Statements could be used against him in court. In

rejecting Petitioner's contention that the foregoing

circumstances showed that he did not understand the

Miranda warnings, the Court of Special Appeals relied

either explicitly on implictly on three principles:

1. Police officers may take at "face value"

an arrestee's statement that he understands

the required warnings.

2. Police officers are not required to give

"legal" advice,

3. There is no requirement that the decision

to waive the right to remain silent be a "wise"

one. (App. A at 14-16).

In proper circumstances, none of these concepts is

inherently objectionable; however, they must be considered

in the context of the fundamental question of “whether the

defendant in fact knowingly and voluntarily waived the

rights delineated in the Miranda case." (emphasis added).

Butler, supra at 373. This is merely a specific

application of the general rule that "[a) waiver is

ordinarily an intentional relinquishment or abandonment of

-J-

a known right or privilege." (emphasis added).

Johnson, supra at 464.

Thus, it may be proper to accept an arrestee's

affirmation of understanding when it is consistent with his

| actions and there is nothing to suggest a lack of

understanding. See, e.g., People vy. Madison, 56

I11.2d 476, 309 N.E.2d 11 (1974); State v. Magee, 52

N.J. 352, 245 A.2d 339 (1968); Commonwealth vy. Carales,

454 Pa. 422, 311 A.2d 572 (1973). Obviously, no such

presumption can apply when the arrestee's Statements or

] actions demonstrate to the officers that he does not

understand the rights of which he has been informed.

vonsequently, it has been held that where a Suspect said he

understood his rights and refused to Sign anything but

| answered questions so long as the interrogator did not

| attempt to make notes, the police were on notice of the

defendant's lack of understanding that oral statements

could be used in court and were therefore obligated to

| engage in further inquiry to determine if the suspect

understood his rights before continuing the interrogation.

State v. Jones, 37 Ohio St.2d 21, 306 N.E.2d 409

| (1974). See also United Sti es v. Nielsen, 392 F.2d

| 849 (7th Cir., 1968); People vy. Plyler, 86 Mich App. 272,

| 272 N.W.2d 623 (1978); People v. Thiel, 24 A.D.2d 897,

| 274 N.Y. S.2d 417 (1966).

It can scarcely be contested that police officers

} need not and should not act as legal counsel for suspects.

| However, it is disingenuous to suggest that police officers

| cannot give legal advice, when giving the Miranda rights

| Plainly does constitute “legal advice." It follows that if

there is a duty to give legal advice there is a concomitant

obligation to take reasonable precautions to ensure that

-8-

the advice is understood before assuming it has been waived.

The final question involves the "wisdom" of waiving

Miranda rights. The Court of Special Appeals is

undoubtedly correct in conc‘uding that a waiver may be

effective without being wisely made. The difficulty with

the court's approach is that a necessary ingredient of

the accused's decision to waive a right (whether wisely or

unwisely) is that the right waived be understood. The

distinction between the two problems was demonstrated in

Canales, supra.

"Appellant began his oral confession by saying:

"Look man, I am not going to give

you a statement from me to you only.

I am not going to sign anything in

the presence of anyone else, and it

will be your word against mine.'

(Emphasis added) .

Unlike the statement in Frasier [v. United

States, 419 F.2d 1161 (1969)}, the appellant's

Statement gives rise to an inference that he

knew the consequences of an oral confession

and expected to prevail in the credibility

contest when the oral confession was used

against him. We must conclude, therefore, that

the trial court did not err in finding a

knowing, intelligent, and voluntary waiver

by the appellant of his constitutional privilege

to remain silent." Jd. at 573.

The Canales facts stand in marked contrast to the

Situation where the Suspect, rather than weighing the fine

points of trial tactics, Simply does not realize that oral

Statements may be used as evidence. Indeed, part of the

litany required by Miranda is that the defendant

understand that any statement he makes may be used

against him. Miranda, supra, at 444. If it is

permissible to proceed as if the right is understood even

in the face of evidence that it is not, the mandatory

warnings would be reduced to an incantation without

Purpose or substance,

While it is clear that the cases cited herein

present a substantial conflict of authority with the

opinion of the Court of Special Appeals and its

primogenitors (see State v. McKnight, 52 N.J. 35, 243

A.2d 240 (1968); Harris v. Riddle, 551 F.2d 936 [4th

Cir., 1977])), the more important consideration in this case

is the significance of the issue and the fact that it has

not been resolved by this Court. In Butler, supra, this

Court concluded that even absent an express waiver the

conduct of the defendant could demonstrate waiver. The

legally undecided but logically necessary corollary is that

the conduct of the defendant may by implication vitiate

his statement that he understands his rights.

In Braeseke, it was noted that:

"Obviously this Court cannot review all

decisions of other courts which hold that

the prosecution has or has not carried its

burden of showing that a defendant waived

his "Miranda" rights. But my reading of

the opinion of the Supreme Court of

California in this case makes me think that

if it was decided on the basis of federal

constitutional law, it comes extraordinarily

close to the adoption of a rule that in no

cases can waiver be inferred from the actions

and words of the person interrogated."

Braeseke, Supra at 721-722.

The Court of Special Appeals' decision means that

once a suspect has said that he understands his rights, no

conduct demonstrating a lack of understanding is sufficient

to require the interrogators to specifically assess the

suspect's understanding. Put another way, under the

court's holding, the state has no burden of showing waiver

once the initial statement of understanding is made.

Petitioner suggests that this extreme, no less than that

described in Braeseke, merits this Court's consideration.

The second issue concerns the "taintability”" of

statements by an earlier statement made after a Miranda

violation. The view of the Court of Special Appeals on the

“10= -

point is clear.

"We said, in Pried vy, State, 42 Md. App.

643, 646, 402 A.2d 101, 102-03 (1979), that

the doctrine of taint, j,e., fruit of the

poisonous tree, does not follow from a ‘mere

Miranda’ violation, c,f.,

State, 33 Md. App. 115, 163-67 [, 364 A.2a

1119] (1976), aff'd 280 Md. 616 [, 374 A.2a

1114] (1977), but applied only to confessions

obtained as by improper in-

ducements or coercion, (Emphasis in original.)

The record in the matter Sub judice does n°

contain any evidence of improper inducement or

coercion. We observe no error in the admission

of Wantland's statement." (App. A. at 19).

Despite the court's certainty on the point, precedential

and logical support for the position in lacking.

If Miranda violations could be "sanitized" by the

simple expedient of giving new warnings and taking a second

statement, the safeguards provided by Miranda would be

wholely eliminated. The reason for this has been vividly

described by this Court.

"Of course, after an accused has once let

the cat out of the bag by confessing, no

matter what the inducement, he is never

thereafter free of the pschological and

practical disadvantage of having confessed.

He Can never get the cat back in the bag.

The secret is out for good. In such a

sense, a later confession always may be

looked upon as fruit of the first."

, 331 U.S. 532, 540

(1947).

Similarly, it was said in Harrison v,. United States, 392

U.S. 219 (1968) that:

"The springs of conduct are subtle and varied,

Mr. Justice Cardozo once observed. One who

meddles with them must not insist upon too nice a

measure of proof that the spring which he re-

leased was effective to the exclusion of all

others. Having released the spring by using

the petitioner's unlawfully obtained confes-

sions against him, the Government must show

that its illegal action did not induce his

testimony." (note omitted). Id. at 224-

225.

The overwhelming weight of authority has adopted the

foregoing precepts and applied them to "taint" caused by

Miranda violations. See, e.g., South Dakota vy.

-ll-

Long, 465 F.2d 65 (8th Cir., 1972); State v, Miranda,

104 Ariz, 174, 450 P.2c 364 (1969); People v. Brake, 191

Colo. 390, 553 P.2d 763 (1976); State v, Young, 344

So.2d 983 (La. 1977); Rhodes v. State, 91 Nev. 17, 530

P.2d 1199 (1975); State v, Poller, 93 N.M. 257, 599 P.2a

1054 (1979); Commonwealth v. Dixon, 475 Pa. 365, 380 A.2a

765 (1977).

Although it cannot be contended that there is a

Significant split of authority on the second question, it

is an issue of importance and its resolution by the Court

of Special Appeals represents a Significant departure from

the reasoning of this Court in anagolous cases. Moreover,

in this case, the question is a necessary subsidiary issue to

the first issue because of the refusal of the court below

to consider taint even if this Court were to conclude that

the first confession should have been suppressed.

In sum, this case presents a factually appropriate

vehicle for this Court to Clarify an issue present in a

Significant number of cases and which, to date, has been

SLojected to widely divergent treatments.

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80-5640 ‘| RECEIVED

Misc. No. | NOV 83 1980

TOFFICE OF THE CLERK

IN THE enact ron

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

CHARLES MILTON WANTLAND,

Petitioner

Ve

STATE OF MARYLAND,

Respondent

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

PETITION FOR WRIT OF CERTIORARI

APPENDIX A

OPINION BELOW

Wantland v. State, Md. App. » 416 A.2d 265 (1980),

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1126

September Term, 1979

CHARLES MILTON WANTLAND

STATE OF MARYLAND

Gilbert, C.J.,

Moore,

Mason,

JJ.

Opinion by Gilbert, C.3.

———_—_Filed: may 9, 1980

The mutilated body of twelve year old Donnie Henley

was: found on the grounds of the Berger Mansion i in Clinton,

Prince George's County, Maryland. It was evident that the

youth had sustained multiple stab wounds, including one

characterized as the "coup de grace," at the point where the

skull joins the neck. It was also apparent from the autopsy

that the youth's anal orifice was abnormally dilated. The

medical examiner was of the opinion that the dilation of

Donnie's anal canal was consistent with penetration in the act

of anal intercourse. }

Young Henley's body was found on Sunday, June 18, 1978,

at approximately sixteen to eighteen hours after he met his

untimely death. Death was fixed by the medical examiner,

Dr. Hormez Guard, at about 6 p.m. to 8 p.m., Saturday,

June 17, 1978.

Following the discovery of the Henley boy's maimed corpse,

the Prince George's County Police Department investigated in

order to ascertain the identity of the person or persons who

had snuffed out the young man's life.

L

The Berger Mansion was owned by the County and operated as a

CETA (Comprehensive Education and Training Act) Project.

App. A-2

The results of the police inquiry, as reflected in the

transcript of the trial, disclosed that a number of witnesses

sail a Charles Milton Wantland in the vicinity of the area

where the deceased was last seen alive. Several witnesses 7

reported that they had seen Henley in the company of the ap-

pellant at approximately 3:30 p.m. on Saturday, June 17, 1978.

The police discovered on the mansion grounds a vile of burned

clothing, an identifiable portion of which matched the witnesses’

description of what Wantland was wearing on Saturday, June 17,

1978. Three cigarette butts, all of the same brand that

Wantland smoked, were found at a point approximately 40 feet

from where the body was discovered. One of the butts, according

to the testimony of an F.B.I. agent, bore traces of saliva in-

dicating that an individual of Wantland's blood type had smoked

the cigarette. Wantland was questioned as to his knowledge of

Henley’s activities. Subsequently, Wantland was charged with

the offense of first degree murder, a sexual offense of the first

degree, and carrying, openly, a deadly and dangerous weapon.

At trial the State introduced three oral statements made

by the appellant. The substance of the statements was that

Wantland knew Donnie and had previously had homosexual relations

App. A-3

.

with him. Q The police were informed by Wantland that he was

so drunk on the date of the homicide that he remembered nothing

of it, but he felt he had ‘committed the crime. According to

the officers, Wantland said he must have used a knife from his

apartment as the weapon. Five knives were recovered from

Wantland's residence; all were introduced into evidence by

the State as exhibits.

The medical examiner testified that one of the knives

could have been used in the perpetration of the homicide.

Despite laboratory tests, no trace of blood was found on

Wantland's clothing or the knives.

A jury, in the Circuit Court for Prince George's County

(Levin, J.), convicted Wantland of murder in the first degree

(Md. Ann. Code art. 27, § 407); a first degree sexnal offense

(Md. Ann. Code art. 27, § 464); and carrying openly a deadly

weapon with the intent to injure (Md. Ann. Code art. 27, § 36(a)).

Judge Levin imposed sentences of life, life and three years,

all to be served consecutively.

Wantland asserts to us that Judge Levin erred in six

respects, namely:

="

According to Dr. Guard, the victim was not a "habitualistic ‘

sodomistic receiver."

App ° A-4

eh.

1. admitting into evidence illegally ob-

tained incriminating pre-trial statements;

2. admitting into evidence an in-court

identification that was based on an im-

pereesetbiy suggestive photographic

ineup;

3. permitting the prosecutor to make improper

opening comments to the jury;

4. denying a motion for judgment of acquittal

inasmuch as the evidence was insufficient

to sustain the convictions;

5. admitting into evidence irrelevant evidence;

allowing the medical examiner to give im-

proper testimony.

We shall address each of the issues that Wantland raises

in the same order they have been put to us.

g.

- THE PRE-TRIAL STATEMENTS -

During the course of the investigation into young Henley's

death, Corporal David R. Hatfield was assigned to "find anybody

{in the area concerned] that could ... [furnish] either [a]

positive or negative response .... [as to the identity of] a

possible suspect...." Wantland, described in the transcript as

"the caretaker or occupant of the Berger Mansion" 3 was one of

3

See n. 1, supra. .

App. A-5

the persons that Hatfield was to interview with respect to

the identity of the suspect.

At approximately 10:30 p.m. om Sunday, June 18, 1978,

Hatfield and another police officer went to the Berger Mansion

where they found Wantland. The officers requested that Wantland:

accompany them to the Bureau of Criminal Investigation (B.C.I.).

The avowed purpose for requesting Wantland to accompany them

was to learn what Wantland knew about the crime. Wantland went

with the officers. When the trio arrived at the B.C.I. facility,

Wantland was taken to an "Interview Room” at sometime shortly

after 1l p.m. No restraints were placed upon him, and he was

not given the Miranda warnings. Hatfield, during the next five

' hours, succeeded in getting Wantland to make a six page state-

ment. The statement was suppressed by the circuit judge on

Wantland’s motion. .

- Hatfield left the Interview Room at the conclusion of the

interview, around 3:30 a.m., June 19, 1978. Corporal T.R. Tucker

entered about one-half hour thereafter. Tucker informed Wantland

that he, Wantland, was under arrest for the murder of Donnie

se

Hatfield testified that Wantland was not under arrest. That

statement does not comport with Miranda.

a

Henley. Tucker related to the court that he “read ... [Wantland]

a waiver of rights form" and recorded Wantland's answers to the

questions printed thereon. Wantland was then handed the form.

to read and sign.

The printed form declared that Wantland understood the

Miranda warnings. With respect to the question of whether

Wantland was willing to make a statement without the presence

of am attorney, Wantland responded, "No."

Notwithstanding Wantland's express negative reply to the

Miranda litany, Tucker recounted ,Wantland continued to talk.

The officer questioned. Wantland in order to determine whether

Wantland was willing to make a statement even though counsel

‘ was not present. According to iucker, Wantland answered that he

wanted to talk.

Prior to any conversation regarding the offenses forming

the gravamen of this appeal, Wantland was permitted to use the

toilet facilities, as well as to purchase some cigarettes. Upon

returning to the Interview Room, Wantland explained to the

officer the reason for the negative response to the question on

the waiver of rights form relative to counsel. He related that

at the time of a‘prior arrest, “he made a statement to the police

and it was in error and it was admitted at the time of trial...."

App. A-7

+

Wantland made clear that his objection was to making a written

statement. Wantland apparently was of the belief that in order

to be admissible as evidence a statement had to be in writing.

Tucker did nothing to alter or correct Wantland's misbelief,

but, instead, acting on the appellant's desire to "talk," began

his interrogation. The trial court denied Wantland's attempt

to suppress that statement.

THe third oral statement was taken the following afternoon

by Corporal M.K. Morrissette. Morrissette told the court that

he was assigned to take Wantland to the Prince George's County

Hospital so that a physician could take samples of the appellant's

“saliva and blood. While at the hospital, Wantland comp lained

to Morrissettee that no one would listen to appellant.

Morrissette suggested that he would take a statement following

the medical procedure.

At the completion of the sampling, Wantland was transported

back to B.C.I. -by Morrissette. There, prior to any questioning,

Wantland was again advised of his Miranda rights. Appellant

responded that he was willing to make a. statement to the officer

without benefit of counsel. It was clear from subsequent remarks

that Wantland made the oral statement under the misconception

that it could not be used against him. The circuit judge, over

“objection, admitted the statement into evidence. .

App. A-8

The fourth and final statement was made by appellant

to Corporal Rowzie, the coordinator of the investigation.

Rowzie told Judge Levin that on July 5, 1978, he went to

Prince George's County Detention Center in order to speak

to Wantland. Before there was any contact between Rowzie

and the appellant, an unidentified correctional officer ex-

plained to Wantland that he was entitled to have his attorney

present during any interview with the police officer. A form

entitled "Detainee Waiver," the text of which purported to be

a waiver of that right, was presented to Wantland, who signed

the form.

Rowzie recounted that he then advised the appellant of the

full panoply of Miranda. Wantland was asked if he understood

those rights, and he replied in the affirmative. According to

the officer, the appellant then stated that he already had an

attorney, but that he did not desire the attorney's presence

during the interview. That, of course, is precisely what he

waived when he signed the form presented to him by che guard.

Rowzie questioned the appellant and took an oral statement

which was admitted, over objection, at trial.

- THE LAW -

Appellant asserts that each of the three statements that

were received into evidence should have been suppressed because:

App. A-9

a) The State failed to prove a mpewits

and voluntary waiver since Wantlan

did not know that an oral statement

could be used against him;

b) Each of the statements was the product

of the failure of volice to respect

his right of cut off of Le gr be,

a right he had asserted to Corporal Tucker;

and

ot c) Each of the statements was the fruit of

ee the poisonous tree, t.e., they grew out

of the illegal statement to Hatfield

(and appellant, assuming that the Tucker

and Morrissette statements were illegal

avers that those statements taint the

succeeding statements).

Additionally, Wantland assails the statement to Corporal

Rowzie on the basis that he did not knowingly waive his right

_ to counsel, even assuming Miranda compliance.

- MIRANDA V. ARIZONA AND ITS SIBLINGS -

In 1966, in the landmark decision of Miranda v. Arizona, 384

U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court

engrafted upon the Fifth and Sixth Amendments the provhylactic

warnings now entitled "Miranda rights." The effect of Miranda

is that before any in-custody statement made by an accused in

response to interrogation is admissible into evidence, the prose-

cution must first demonstrate that the accused was advised of

the rights articulated and specified in the Miranda case and

knowingly and intelligently waived those rights. The burden is

-10-

on the prosecution to establish by a preponderance of evidence

that Miranda rights were given and waived by the accused.

Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618

(1972); Mulligan v. State, 18 Md. App. 588, 308 A.2d 418 (1973).

When a suspect stands upon the constitutional guarantees

delineated in Miranda, the police must respect that decision.

Miranda makes manifest that:

"If the individual indicates in any manner,

at any time prior to or during questioning,

that he wishes to remain silent, the in-

terrogation must cease. At this point he

has shown that he intends to exercise his

Fifth Amendment privilege; any statement

taken after the person tavokas his privilege

cannot be other than the product of com-

pulsion, 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 pro-

ducing a statement after the privilege has

been once invoked. If the individual.

states that he wants an attorney, the in-

terrogation must cease until an attorney

is present. At that time, the individual

must have am opportunity to confer with the

attorney and to have him present during any

subsequent questioning. 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." (Footnote omitted.) 384 U.S. at

er? 86 S.Ct. at 1627-28, 16 L.Ed.2d at

yrs @

Notwithstanding Miranda's seeming proscription of further

interrogation, the Supreme Court, in Michigan v. Mosley, 423

ait

U.S. 96, 102, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 320 (1975),

said that "literal interpretations [of that language] would

lead to absurd and unintented results." Mr. Justice Stewart,

speaking for the Court in Mosley, observed that "a blanket

prohibition against the taking of voluntary statements or a

permanent immunity from further interrogation, regardless of

the circumstances, would transform the Miranda safeguards into

wholly irrational obstacles to legitimate police investigative

ectivity...." Ibid. Thus, "the admissibility of statements

obtained after the person in custody has decided to remain

silent depends ... on whether his ‘right to cut off questioning'

was ‘scrupulously honored.'" 423 U.S. at 104, 96 S.Ct. at 326,

46 L.Ed.2d at 321. |

On the other hand, an accused may decline to rely upon the

safeguards afforded by the Fifth and Sixth Amendments. Conse-

quently, the police may iieubeneneh him. Whem that is alleged

to be the situation, "[a] heavy burden rests upon the ... [State]

to demonstrate that the defendant knowingly and intelligently

waived his privilege[s]...." Miranda, supra at 475, 86 S.Ct. at

1628, 16 L.Ed.2d at 724. “The courts must presume that a de-

fendant did not waive his rights;[so that] the prosecution's

burden [of showing a waiver] is great...." Worth Carolina v. 4

Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286,

App. A-12

-12-

292 (1979). See also Tague v. Louisiana, U.S. bie ee

S.Ct. 652, 62 L.Ed.2d 622 (1980). Waiver is not a matter of

form, but rather one of fact weighed in the light of the

totality of the circumstances. Fare v. Michael C. U.S.

__» 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). See also North

Carolina v. Butler, supra.

At any suppression hearing, the State must carry the onus

of establishing by a preponderance of the evidence that the

waiver was voluntary, knowing, and intelligent. Lego v. Twomey,

supra; Mulligan v. State, supra.

(a)

The substance of appellant's first contention is that he

did not know that an oral statement could be used against him

in court. His misunderstanding, he says, precluded his having

made a voluntary, knowing, and intelligent waiver.

Much the same contention as that now made by Wantland was

advanced to the Supreme Court of New Jersey in State v. McKnight,

52 N.J. 35, 243 A.2d 240 (1968). There, a defendant made an oral

statement which was transcribed by a detective. When the trans-

cription was completed, the accused was asked to affix his signa-

ture thereto, but he requested that he not do so until his at-

torney could read it. The statement was never signed. At trial’

eo eee ———— ee

PT

——— ss a Os el

eS

the accused argued that the waiver "was not ‘intelligently

made' because he thought" the oral statement could not be used

against him.

' Chief Justice Weintraub, for the Court, rejected that con-

tention, observing:

“Nowhere does Miranda sapues’ that the

P waiver of counsel at the detectional

stage would not be ‘knowing' or’ 'intel-

ligent' if the suspect did not understand

the law relating to the crime, the pos-

sible defenses, and the hazards of talking

without the aid of counsel, or if the

suspect was not able to protect his

interests without such aid, or, in terms

of the plurality opinion in Von Moltke [v.

Gillies, 332 U.S. 708, 68 S.Ct, 316, 92

L.Ed. 309 (1948)], if it was not 'wise' of

the priscmer to forego counsel or the right

to silence. ... However relevant to

‘waiver’ of the right to counsel at trial

- or in connection with a. plea of guilty,

those factors are foreign to the in-vestiga-

tional scene where the detection of the guilty

is the legitimate aim.

Hence if a defendant was given the Miranda

warnings, if the coercion of custodial inter-

rogation was thus dissipated, his 'waiver'

was no less ‘voluntary’ and 'knowing' and

‘intelligent’ because he misconceived the in-

culpatory thrust of the facts he admitted, or

because he thought that what he said could not

be used because it was only oral or because

he had his fingers crossed, or because he

could well have used a lawyer. A man need not

have the understanding of a lawyer to waive

one. Such matters, irrelevant when the de-

fendant volunteers his confession to a friend

App. A-14

-14-

or to a policeman passing on his beat,

are equally irrelevant when the con-

fession is made in custody after the

coercion of custodial interrogation

has been dispelled by the Miranda

a With such warnings, the

essential fact remains that [the] de-

fendant understood he had the right

to remain silent and thereby to avoid

the risk of self-incrimination. That

is what the Fifth Amendment privilege

is about." (5) (Citations omitted.

S52 .N.J. at 54-55, 243 A.2d at 251-52.

The Fourth Circuit, in Harris v. Riddle, 551 F.2d 936

(4th Cir. 1977), when faced with an identical argument to that

now before us, concluded that the officers need not correct the

misapprehension of the accused. The Court stated:

"But Miranda does not put upon the

police the burden of explaining the

rules of evidence and the substantive

criminal law. The average interrogating

police officer is not capable of it. It

surely would have been helpful to Harris

to have had a lawyer present to explain

to him the felony-murder doctrine and

the admissibility ‘of an oral confession.

But police officers cannot act as counsel

even if the burden were peaperty theirs,

and it is not. When the police have

fully and fairly given a suspect the

Miranda warnings their duty is discharged,

2

In addition to rejecting the claim on the —— basis, the court

also rejected the claim as a matter of fact, labeling it “absurd."

~2S—

and we hold that they are under no further

and additional duty whether or not the

suspect acts wisely or foolishly or mis-

apprehends either the facts or the law."

551 F.2d at 938-39.

We responded in much the same vein to a contention in

Greenwell v. State, 32 Md. App. 579, 363 A.2d 555 (1976) that

a defendant was unable to understand the Miranda warnings be-

cause of a learning disability. Judge Powers, for this Court,

noted:

“When Mr. Chief Justice Warren said for

the Supreme Court in Miranda that a

waiver of the right must be made ‘volun-

tarily, knowingly and intelligently’,

the Court did not mean, we take it, that

the waiver must stand up under three dif-

ferent tests. We understand the words

"knowingly and intelligently’ to have

been used to put a gloss on the word

, ‘voluntarily’, so that for the purpose of

@ watver it carries with it a connotation

that the volunteer is aware that he may

not be compelled to incriminate himself,

but has still decided to talk. It is the

fact of his decision, not the wisdom of

tt, for which we look. Surely the word

intelligently could not have been intended

to mean wisely, for who-is to judge,

restrospectively, the ethice’ wisdom of

telling the truth, even when it hurts."

(Emphasis supplied.) 32 Md. App. at 587,

363 A.2d at 561.

We decline to adopt the view that Miranda requires a

waiver to be wisely made. Were we to follow that path, the

police would be forced into the role of counsel for an accused.

xy

Miranda does not require that an accused be apprised of the

evidentiary value of a statement. The duty of the police was

discharged in the instant case when Wantland understood he

could remain silent, and he relinquished that privilege with

that awareness. It was not incumbent upon the police to in-

struct Wantland, even if they were qualified to do so, as to

the effect of an oral statement vis-a-vis one that is written.

(b)

Appellant next asserts that because of his expressed de-

sire for counsel, as made to Corporal Tucker, all subsequent

statements violated Miranda. This is so, Wantland says, be-

cause the police failed to respect his right to "cut off inter-

* rogation."

Even if we assume arguendo that Wantland's response to

Tucker precluded further questioning by that officer, the state-

ment to Morrissette and the statement to Rowzie were made at a

time occurring well after the initial assertion to Tucker. 6

Each officer testified that he, prior to renewing questioning,

informed Wantland of the Miranda rights. Neither Morrissettee's

=

The statement to Morrissettee was more than twelve hours after

appellant's "cut off" articulated to Corporal Tucker. The state-

ment to Rowzie occurred after a lapse of sixteen days following -

the Wantland-Tucker episode.

App. A-17

ye

nor Rowzie's testimony was contraverted. Our review of the

record indicates that appellant's rights were "scrupulously

honored." Michigan v. Mosley, supra.

Appellant would have us read Miranda and its progeny to

hold that once Wantland indicated that he would not make a

Statement without counsel, any statement obtained thereafter

is illegal. To so read Miranda would mean that we would give

no cognizance whatsoever to Tague, Fare, and Butler. Those

three cases, post-dating Miranda, make unmistakable that the a

question of waiver is one of fact to be determined from the

totality of the circumstances. See also Leuschner v. State,

ae, - ‘ Riis ites (1980) (No. 945, September

- Term, 1979, filed April 14, 1980).

Tucker's uncontradicted testimony was that after Wantland

declined to talk without counsel's being present, Wantland con-

tinued to speak. When questioned again as to whether. he wanted

to make a statement without counsel, Wantland said what he meant

was that he would not make a written admission. We believe the

record supports a factual finding that Wantland made a valid

waiver of his right to remain silent, his right to caunsel, and

the remainder of the Miranda panoply.

(c) :

Wantland next attacks the three oral statements as being the

“ys

toxic fruit of the upas tree and, hence, inadmissible. 7

We said, in Fried v. State, 42 Md. App. 643, /602' A. 24

101, 102-03 (1979), that "the doctrine of taint, t.e., fruit

of the poisonous. tree, does not follow from a ‘mere Miranda'

violation, e.f., Bartram v. State, 33 Md. App. 115, 163-67

[364 A.2d 1119] (1976), aff'd 280 Md. 616 (,374 A.2d 1144]

(1977), but applies only to confessions tnvoluntarily obtained

as by improper inducements or coercion." (Emphasis in original.)

The record in the matter sub judice does not contain any evidence

of improper inducement or coercion. We observe no error in the

admission of Wantland's statements.

(d)

Appellant's final assault on the admission into evidence of

his statements focuses solely on the statement that he made to

Corporal Rowzie in the Prince George's County Jail. Wantland

argues that the statement to Rowzie is invalid because counsel

had been appointed for Wantland at the time/the statement was .

made. He asserts that under Massiah v. United States, 377 U.S.

Tr

As we indicated before, i ee assumes that each of the other

Statements was also illegal and taints all succeeding statements.

In view of our rulings on the Tucker and Morrissette statements,

we need not consider the point. °

-19-

201, 84 S.Ct. 1199, 12 L.Ed.24 246 (1964), “the bare-bones

Miranda warnings given ... by ... Rowzie" were insufficient

to apprise him of his rights, and any purported waiver thereof

was ineffective.

The Court of Appeals, in Watson v. State, 282 Md. 73, 382

A.2d 574, cert. denied, 437 U.S. 908 (1978), aff'g 35 Md. App.

381, 370 A.2d 1149 (1977), after considering the effect of

Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424

(1977) under its prior holding in State v. Blizzard, 278 Md.

556, 366 A.2d 1026, rev'g 30 Md. App. 156, 351 A.2d 443 (1976),

held that a “bare-bones Miranda warning" is sufficient to

support a waiver of the right to counsel.

2 a

Wantland next directs his barrage uvon identifications of

him that were made by two witnesses. Appellant alleges the

identifications were the result of an impermissibly suggestive

photographic lineup. It is unnecessary for us to resort to

the detailed analyses required by Wetl v. Biggers, 409 U.S. 188,

93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Foster v. State, 272 Md.

273, 323 A.2d 419, cert. denied, 419 U.S. 1036 (1974); and Dobson

v. State, 24 Md. App. 644, 335 A.2d 124, cert. denied, 275 Md.

747 (1975), because appellant has set forth no factual basis ,

for his assertion of suggestiveness. Our own review of the

array does not disclose any impermissibleness.

App . A-20

-20-

se ga

Because the prosecutor, in his opening argument; im-

properly referred to the Hatfield statement, which had been

suppressed by the trial court, Wantland perceives reversible

error in the trial judge's refusal to order a mistrial.

Comt v. State, 26 Md. App. SIl, 338 A.2d 918, cert. denied,

276 Md. 740 (1975).

Judge O'Donnell, in Wilhelm v. State, 272 Md. 404, 411-

12, 326 A.2d 707, 714 (1974), said for the Court of Appeals:

“The primary vurpose or office of an

opening statement in a criminal vrosecu-

tion is to apprise with reasonable suc-

cinctness the trier of facts of the

questions involved and what the State or

the defense expects to prove so as to

prepare the trier of facts for the

evidence,to be adduced. While the

Prosecutor should be allowed a reason-

able latitude in his opening statement

he should be confined to statements

based on facts that can be proved and

his opening statement should not include

reference to facts which are plainly in-

admissible and which he cannot or will

not be permitted to prove, or which he in

good faith does not expect to prove. An

opening statement by counsel is not

evidence and generally has no binding

force or effect. To secure a reversal

based on an opening statement the accused

ts usually required to establish bad faith

on the part of the prosecutor in the state-

ment of what the prosecutor expects to

prove or establish substantial prejudice °

resulting therefrom. Clarke v. State, 238

Md. 11, {9-20, 207 A.2d 456, 460 (1965);

Ott v. State, 11 Md. App. 259, 266, 273 A.

2d 630, 634, cert. denied, 262 Md. 748

(1971)." (Emphasis supplied.)

w23<

Wantland has demonstrated neither prejudice to him, nor

bad faith on the part of the Prosecutor. Moreover, the jury

was properly cautioned that counsel's argument was not evidence.

Judge Levin did not abuse his discretion in refusing to order

a mistrial.

Iv.

From the barrage on the alleged error in not granting a

mistrial, Wantland turns his field of fire to the judgment

resulting from a violation of Md. Ann. Code art. 27, § 36(a),

carrying a deadly weapon openly with intent to injure. He

states that the only testimony on the point was that of

Aliscia Baker. She said that a man,identified by others as

Wantland, that she had seen on the road near young Henley

prior to the murder, had an object that "looked like an army

knife." The appellant points out that in her original state-

ment to police, Ms. Baker made no reference to a knife.

Ms. Baker's failure to refer to the knife in her original

version goes to the weight of her evidence, not its admissibility.

The jury was free to believe Ms. Baker's testimony or to reject

Se. ae nay Shows to believe it, as they obviously did, they

rom

could infer/that evidence, coupled with the fact that young

Henley was stabbed and his throat was cut, that the appellant

App. A-22

—————_— =.

-22-

did carry a knife with the requisite intent to injure. In

our view the evidence was sufficient to permit the jury to

find that Wantland was guilty of violating Md. Ann. Code art.

27, § 36(a) beyond a reasonable doubt.

Vv.

~- Penultimately, Wantland sees something insidious in the

testimony of the medical examiner that a knife, obtained in

a search of the Berger Mansion, could have been used to kill

the victim. Appellant maintains that the knife was never

“connected to the alleged murder" and is, therefore, irrelevant.

We shall not consider the relevancy vet non of the knife inas-

much as, subsequent to the doctor's testimony, the knife was

"admitted into evidence without objection. The failure to ob-

ject constitutes a waiver of the issue. Yet, were the matter

properly before us, we would hold that even if the admitted

testimony was erroneous, it was harmless beyond a reasonable

doubt. Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976).

VI.

Ultimately, Wantland takes aim on the testimony of the

medical examiner, Dr. Hormez Guard. Appellant asseverates that

it was error for the trial judge to allow the doctor “to testify

that it was a reasonable probability that certain things could

-23-

have happened." (Emphasis in original.) Appellant thinks

that the doctor should not have been permitted to testify that

sodomy could be the cause of the dilation of the victim's anus,

nor that the knife exhibited to him could have caused the in-

juries.

It is well established that in this State a medical expert

is not required to express his opinion with an absolute certainty,

but only with a reasonable probability. Andrews v. Andrews, 242

Md. 143, 152, 218 A.2d. 194, 200 (1966).

A medical expert is not limited to expressing his opinion

as to what actually did happen; he may opine, based on a reason-

able medical certainty, that which could have happened, provided,

‘ ef course, that there is sufficient evidence of a causal con-

mection. See Hughes v. Carter, 236 Md. 484, 486, 204 A.2d 566,

567-68 (1964). It was for the jury to find, based on all the

evidence, whether sodomy did occur, and whether a particular

knife was used in the slaying. We perceive no error.

JUDGMENTS AFFIRMED.

COSTS TO BE PAID BY APPELLANT.

1} OV "VVFsYU

Misc. No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

4

CHARLES MILTON WANTLAND,

Petitioner

Vv.

STATE OF MARYLAND,

Respondent

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

APPENDIX B

Order of the Court of Appeals of Maryland denying certiorari

In the

Court of Appeals

CHARLES MILTON WANTLAND

of Maryland

v.

Petition Docket No. 193

September Term, 19.0

(No1126 , September Term, 1979

STATE OF MARYLAND

L Court of Special Appeals)

ORDER

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

Special Appeals in the above entitled case, it is

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

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

and in the public interest.

/s/ Robert c. Murphy

Chief Judge

Date: September 4 , 1980.

App. Bel

; | 80-5640

Misc. No,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

CHARLES MILTON WANTLAND,

Petitioner

Vv.

STATE OF MARYLAND,

Respondent

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

APPENDIX C

CONSTITUTIONAL PROVISIONS

U.S. CONST., amend. V

U.S. CONST., amend. XIV

CONSTITUTIONAL PROVISIONS

U.S. CONST., amend. V provides in pertinent part:

- + « [NJor shall any person be subject for

the same offense to be twice put in jeopardy

OF 2270 OO ides 2 os

U.S. CONST., amend. XIV provides in pertinent part:

. « « [NJor shall any state deprive any

person.of life, liberty, or property,

without due process of law...

App. C-l