Petition — Meyer v. Maryland
Supreme Court brief1983
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SEP 26 1983
IN THE
Supreme Court of the United States
September Term, 1983
GENE THOMAS MEYER,
Petitioner,
STATE OF MARYLAND,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
ON APPEAL FROM THE COURT
OF SPECIAL APPEALS OF MARYLAND
JOHN T. BELL
(Counsel of Record)
BELL, CORNELIUS & SHORE
101 West Jefferson Street
Rockville, Maryland 20850
(301) 762-1717
Attorney for Petitioner
AE A, eS TIE OE SEES:
THE CASILLAS PRESS, INC. - 1717 K Street N.W. — Washington, 0.C. — 223-1220
(i)
QUESTIONS PRESENTED
I. Was the Petitioner denied his right to protection against
self incrimination as guaranteed by the Fifth and Fourteenth
Amendments of the United States Constitution by the use of the
two statements taken during interrogation against him?
II. Was the Petitioner denied his rights to assistance of
counsel as guaranteed by the Sixth and Fourteenth Amend-
ments of the United States Constitution during the unrea-
sonably long and unlawful detention for purposes of interroga-
tion?
III. Did the Petitioner waive any right to appeal the issues of
this petition because of inadequate representation by the Public
Defender in the appeal of the Circuit Court conviction?
IV. Was the Petitioner denied his right to be present in all
stages of his trial as guaranteed by the United States Constitu-
tion?
(iii)
TABLE OF CONTENTS
Cases: Page
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EU So ccc sccnccccsccccceccccccncess 2
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REASONS FOR GRANTING THE WRIT ............00000055 10
That the Petitioner was denied his right to protection
against self-incrimination, that the Petitioner was
denied his rights to assistance of counsel, that the
Petitioner did not waive any right to appeal the issues
of this petition because of inadequate representation
by the Public Defender in the appeal of the Circuit
Court conviction, and that the Petitioner was denied
his right to be present in all stages of histrial ..............5. 10
LeU EGe neh pa deespeecovassccccescccess 28
CONTENTS OF APPENDIX
Appendix A
Meyer Letter of November 6, 1982 to Geraldine Sweeney ...... la
Appendix B
Geraldine Sweeney Letter of November 9, 1982 to Meyer ...... 2a
(iv)
Page
Appendix C
Court of Special Appeals Opinion Meyer v. State,
GP A MET EMOOEE chadccadsssécédaucansadasensoeken
Appendix D-H
Petition for Post Conviction Relief, Verification,
IE 6 occ dankidsds nce nae eke raeketeetaeue
Appendix I
Decision of Judge Taylor denying Petition for
PUN Satuninccadveus’s . scekeppeeseceanneewenen
(v)
TABLE OF CITATIONS
Cases: Page
Anders v. California,
EG ais caiduisa ce Suni aee'e ehenee s8 20, 21, 22, 23
Barnes v. Jones,
Ee CE GIE. SUED obs Wnccsrcdercenveseesedeus 21, 22
Blackburn v. Copinger,
Be, BEAT Ge. BOE. TIGRD once ccc cccaccccessvevsvesve 13
Brewer v. Williams,
ne oc cobs a pa phe aes i Cuehnede evens cua ke 12
Brown v. State,
I 6 in dic a aka obdin ove ve eR OREN WKee eee ee 24
Bunch v. State,
rE ee lea ds Ue s Sista v ae ewau on hd dee 24, 25,27
Commonwealth v. Hilliard,
TE RI reer Ere ee ere Tree 17
Commonwealth v. McKenna,
er, COD sg dc aine cdcvivaadons evpecneahen 17
Edwards v. Arizona,
kd ch dea cb eah Cashes been awaare a 13, 16
Ennis v. LeFevre,
560 F.2d 1072 (2d. Cir. 1977), cert. denied,
aha ie ae seeds cakee pee aa ee 21
Epps v. Levine,
457 F. Supp. 561 (4th Cir. 1978) 0.6.0 e cece eee ence ence ees 14
Faretta v. California,
ee snk 5 oma eee Wa en Rinne eee 24
Haley v. State,
Sy Ss PUES odd pevnievcess Koccceseesndeen 24-25, 27
(vi)
Page
Haynes v. Washington,
SOE SEED cbr cnsaccusedcasccncodensewevecnsenen 14
High v. Rhay,
— oe | le... rrrrrrerrr re cr rr errr 21
Horsley v. Simpson,
Se Fe et Gir, BOD occ ccc cc cncsvtavweicevcccucosan 22
Hughes v. State,
PE RED oc occvcecessccacsusvedneseseant®enmonn 24
Johnson v. State,
TE So duis vecdacsnnnteeudonnapnends 12, 13, 15, 19
Law v. State,
21 Md. App. 12. affd. after remand
ZONE. Amp. 4ST (IGTE) 2. cvcccccccccccccccccccccsccseess 12
Mallory v. Hogan,
SIGE HED gos vcdccccvncccccccccdscasesseusepaceuen 10
Martin v. State,
BIB, FER TIED vicc cs cccccccccscccovesssacndsesetcen 24
Meyer v. State,
43 Md. App. 724 (1979) ....... cc ccccccccceeeeveccecees passim
Michigan v. Mosley,
PF Lit R |. PPPPerrrrrrirriitirir 16
Midgett v. State,
FIG WOE, TECITSAD oc cccccccccccccccccevcssepscvoseuens 25,27
Miller v. McCarthy,
607 F.2d 854 (9th Cir. 1979) 0... ccc cece e cece eee eeeeeeee 22
Miranda v. State of Arizona,
SAB U.S. GBC CIDER .n ccccccccccccccccccccccsecceseees passim
(vii)
Page
Nobel v. State,
i P: cc ccc tnaaseuctectacpetseeebeuseue 27
Oregon v. Bradshaw,
U.S. i oes Ge GND, . .ucaceeuedecesuats 16
Porter v. State,
ee ee ae pe a aess ease 25, 27
Rhode Island v. Innis,
ee as use cic cae ae wes behead eh ebenees 12
Robinson v. Wyrick,
ee re. CED occcchadcecseecesanseavecceduss 22
Shields v. United States,
EE Solas ce ie pwiess sve Geen s cow eek esuees 27
Snyder v. Massachusetts,
ae ak cect pwaeesu cee 6 caceevasseemees 24
State v. Haynes,
re Leo. cok vee as pads bea ew he pakiwe ee 17
State v. Mathews,
ES cdc nn op ewinnbaees 6500 ahaawe cenme 17
State v. Zimmerman,
rn hie ess an hada acinet 660506) he caees bade 27
Telesco v. Scully,
$41 F. Supp. 822 (D. N.Y. 1982)... eee 23
United States v. Neff,
I eT ee re 22
Weber v. State,
EEE ee 17, 18
Williams v. State,
ED 06.69.50000000960000000000660000000006 2,27
(viii)
Page
Statutes and Rules:
Constitution of the United States:
Pree PMROMIIOEE oc ccccccscccnseccccsevcceceescsses 1,2,4
NUNN 6c decncves. duescsecnccucesesscesssncas 1,4
Fourteenth AMenGMent .......cccccccccceccsseseens 1, 2,4, 24
Maryland Code Annotated, “Courts and Judicial
Proceedings,” Dectdon 1ID-DOIDTS. on ccs ccssccccscccccccspes 2
Maryland Code Annotated, Article 27, Section 645 .........6..45. 2
DGaryenne District Rube TAS on. ccc cccsccccccsecvcens 19, 20, 23
Maryland Rule 724 ............ (hbase NR eh ee eae avaneeeeen ens 24
Miscellaneous:
Maryland Declaration of Rights, Article S$ 2.0.0... 6... 24
Maryland Declaration of Rights, Article 21 2... 06... ccc 3
Maryland Declaration of Rights, Article 23 0... 6... ccc eee 2
ABA Standards, Criminal Appeal, Section 3.2(1970) ........... 21
IN THE
Supreme Court of the United States
September Term, 1983
No.
GENE THOMAS MEYER,
Petitioner,
STATE OF MARYLAND,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
ON APPEAL FROM THE COURT OF
SPECIAL APPEALS OF MARYLAND
STATEMENT OF JURISDICTION
In April, 1978 Petitioner was convicted of first degree murder
of a woman and her three-month-old infant in the Circuit Court
for Prince George’s County, Maryland. The conviction was af-
firmed in Meyer v. State, 43 Md. App. 724 (1979).
On October 28, 1982 Meyer filed a Petition for Post-
Conviction Review in the Circuit Court for Prince George's
County, Maryland. The Petition raised claims that Petitioner
was denied his rights under, inter alia, the Fifth, Sixth, and
Fourteenth Amendments of the United States Constitution.
5
-
On April 11, 1983 the Honorable James H. Taylor of the Cir-
cuit Court for Prince George’s County, Maryland denied
Meyer’s Petition for Post-Conviction Relief. It was from that
decision that Meyer appealed to the Court of Special Appeals
which affirmed Judge Taylor’s ruling in an unreported opinion
dated July 27, 1983.
That decision represents a final judgment by a Maryland Ap-
pellate Court from which no further right to appeal to the
Maryland Court of Appeals exists. Maryland Code Annotated,
“Courts and Judicial Proceedings,” Section ‘'2-201-202;
Williams v. State, 292 Md. 201 (1981).
The grounds on which the jurisdiction of this court is invoked
are (1) that the Petitioner was denied his right to protection
against self-incrimination as granted by the Fifth and Four-
teenth Amendments, (b) his right to the assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments, and (c)
his right to be present at all stages of his trial as guaranteed by
the Sixth and Fourteenth Amendments of the United States
Constitution.
STATEMENT OF THE CASE
On October 28, 1982 Meyer filed a “Petition for Post-
Conviction Review” in the Circuit Court for Prince George’s
County, Maryland. Maryland Code Annotated, Article 27, Sec-
tion 645. In that Petition Meyer raised five reasons why his con-
viction should be reversed and he be given a new trial:
I. That the Petitioner was denied his right to protection
against self incrimination as guaranteed by the Fifth and
Fourteenth Amendment of the United States Constitution,
and Article 23 of the Maryland Declaration of Rights, by the
use of the two statements taken during interrogation against
him.
Il. That the Petitioner was denied his rights to assistance
of counsel as guaranteed by the Sixth and fourteenth Amend-
\ ments of the United States Constitution and Article 21 of the
Maryland Declaration of Rights, during the unreasonably
ong and unlawful detention for purposes of interrogation.
' III. That Petitioner was denied his right to a timely copy
of the arrest warrant as guaranteed by Maryland law.
| IV. That Petitioner was denied his right to be present at all
stages of his trial as guaranteed by Maryland law.
V. That Petitioner did not waive any right to appeal the
l issues of this petition because of inadequate representation by
| the Public Defender in the appeal of his Circuit Court convic-
tion.
On April 11, 1983 the Honorable James H. Taylor of the Cir-
cuit Court for Prince George’s County, Maryland denied
Meyer’s Petition for Post-Conviction Relief and issued a
Memorandum., (Apx. I) However, Meyer contends that Judge
Taylor did not properly address issues I, II and V. The decision
merely stated that those issues had been disposed of by the
Court of Special Appeals in Meyer v. State, 43 Md. App. 427
(1979). By filing an Application for Leave to Appeal Meyer ap-
pealed Judge Taylor’s finding to the Court of Special Appeals.
On July 27, 1983 the Court of Special Appeals, in an
unreported decision, affirmed Judge Taylor’s findings and
denied Meyer leave to appeal. Although the Court was asked to
address the issues of whether or not Judge Taylor improperly
summarily disposed of the issues regarding the police depart-
ment’s refusal to allow Meyer’s counsel to see him during the in-
terrogation and the issue of whether or not Meyer’s appellate
counsel improperly refused to raise Miranda violations in Meyer
v. State, 43 Md. App. 724 (1979), the Court of Special Appeals
in its opinion also did not address those issues (Apx. K). The
federal questions sought to be reviewed here were first raised by
petitioners’ trial counsel in the original murder trial, in the Peti-
tioners’ Petition for Post Conviction Relief (Apx. D) and in the
Petitioners’ Application for Appellate Review (Apx. J). The
4
issues raised were discussed by the Court of Special Appeals in
the decision denying appellate review. (Apx. K)
CONSTITUTIONAL PROVISIONS
[Amendment V]
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without
just compensation.
{Amendment VI]
In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be con-
fronted with the witnesses against him; to have compulsory pro-
cess for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
[Amendment XIV]
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without
due process of law; nor deny to any peson within its jurisdiction
the equal protection of the laws.
$
STATEMENT OF FACTS
On September 23, 1977, Carol Ann Lewis and her baby
daughter, Heather, were stabbed to death in their home, in
Bowie, Maryland. Mrs. Lewis’ husband, Lon Lewis, discovered
the bodies at approximately 6:45 p.m. Mr. Lewis was subse-
quently questioned at times over the next two weeks until on Oc-
tober 7, 1977, when he confessed to conspiring with his co-
worker, Gene T. Meyer, to murder their wives. With Meyer thus
implicated, the police drew up a warrant for Meyer’s arrest for
the murder of Carol and Heather Lewis, attaching to it a copy
of the Lewis confession.
On October 8, 1977, a Montgomery County Judge issued the
warrant for Meyer’s arrest. Officer Hatfield of the Prince
George’s (P.G.) County police immediately went to Meyer’s
apartment in Rockville, roused Meyer from bed, placed him
under arrest at approximately 7:30 a.m., and immediately took
him out to a waiting police cruiser. Meyer was not given a copy
of his arrest warrant, nor was a copy of the search warrant for
his apartment given to either Meyer or his wife. The Prince
George’s County police escorted Meyer immediately after the
arrest to police heaquarters for purposes of taking a statement.
The Meyers’ apartment was searched for evidence soon after
their depai ure. The police left a copy of the search warrant on
the table of the apartment.
Meyer was taken to the Prince George’s Bureau of Criminal
Investigations (BCI) in Forestville, Maryland and placed in an
interrogation room. He spent approximately 15 hours at B.C.I.
that day, mostly under interrogation, and made two (2)
Statements.
Testimony at Meyer’s subsequent murder trial conflicted as to
the extent of questioning and discussion which transpired dur-
ing the ride from Rockville to Forestville. Officer Hatfield
claimed chat he placed Meyer immediately in the B.C.I. inter-
rogation room because of Meyer’s request to read Lewis’ confes-
sion. Hatfield produced the Lewis statement and read it to
6
Meyer, repeatedly interjecting questions as they progressed
through the text. At the conclusion, Hatfield testified that
Meyer requested to “tell his side” and, consequently, Hatfield
took a statement from Meyer.
This statement generally denied any involvement with the kill-
ings, though Meyer did admit to knowing that Lewis wanted to
“get rid” o. his wife, and to being at the Lewis home on the
evening of September 22, 1977, and to owning a light colored
suit and dark briefcase at that time. These admissions, together
with the statement as a whole, were later used in the State’s case
against Meyer.
Meyer testified that neither Hatfield nor any other officer
ever informed Meyer of his constitutional rights before or dur-
ing the taking of the first statement, and in fact repeatedly
refused his requests for an attorney. Hatfield testified, however,
that he read Meyer his Miranda rights off a card both in the
cruiser outside Meyer’s apartment and in the interrogation room
prior to taking the first statement. He further claimed that
Meyer at no time requested to see an attorney or make a phone
call. There was, however, no corroborating testimony to sup-
port Hatfield’s claim that he read Meyer his rights, as in each in-
stance cited, Meyer and Hatfield were alone. While Meyer
signed each page of the statements taken both that morning and
that evening, no waiver form was ever signed by Meyer.
Meyer was held at B.C.I. from his arrest at 7:00 a.m. unti! ap-
proximately 4:00 p.m., at which time he was taken to Upper
Marlboro to be formally charged by a District Commissioner.
Prior to this time, however, Meyer was photographed for the
purpose of compiling a “photo-spread” for identification by the
sole eye-witness, Darlene Brown. He was also formally process-
ed (i.e. fingerprinted, etc.) sometime close to 4:00 p.m. The ac-
tual dictation of the first statement, written by Hatfield, took
place between approximately 11:00 a.m. and 4:00 p.m.
At 4:00 p.m., the police took Meyer before District Commis-
sioner O’Brien for a brief time not exceeding ten minutes.
+
O’Brien testified that he read Meyer the charges, informed him
of his right to counsel, and advised him as to the availability of
the Public Defender. Meyer signed an initial appearance report
which advised Meyer of his Court date and bond status, and
signed a form requesting a preliminary hearing. At no time dur-
ing appearance did Meyer sign a formal waiver of his rights.
O’Brien signed these two documents and a third committing
Meyer to the custody of the Sheriff and the county jail.
Meyer was thereupon taken back to B.C.1I., following a short
detour to purchase a dinner for him. Meyer was placed in an in-
terrogation room at B.C.I. and Morrissette began to question
him. Morrissette testified that he read Meyer his Miranda rights,
but again Meyer denies ever being so informed. There was no
corroborating testimony for Morrissette’s account.
Morrissette continued questioning Meyer until approximately
9:00 p.m. at which time Morrissette recessed in preparation for
recording Meyer’s statement. Meyer claims that Morrissette in-
timated that he could somehow “make it easy” on Meyer if he
confessed. Morrissette denies this as he denies ever alluding
generally to the probability that if Meyer didn’t confess “they
would drop the pill” on him in prison (evidently a reference to
some unspecified threat of death). Morrissette typed a state-
ment from Meyer in a question and answer format from 9:20
p.m. until approximately 10:00 p.m. Although this statement
generally acknowledged guilt in the slaying of Carol Lewis,
Meyer denied stabbing Heather and answered many questions
with “I don’t know” replies.
After Morrissette had finished typing the statement, he sub-
mitted a written waiver of rights for Meyer to sign, which Meyer
refused. Morrissette then consulted with a superior, Lieutenant
Crump, who instructed Morrissette to add the question, “Were
you advised of your constitutional rights by the District Court
Commissioner?”, to which Meyer replied that he didn’t
remember. Meyer did sign each of the pages of the typed state-
ment. Following completion of the statement, and Meyer’s
8
refusal to sign the written waiver, Meyer was finally taken to the
county jail.
During the latter half of the day, Mrs. Meyer, accompanied
by Mrs. Meyer’s mother and two friends, Mr. and Mrs. Lash,
waited vainly for a number of hours to see Meyer. Police at
B.C.I. told Mrs. Meyer that she could neither see her husband
that day, nor get a lawyer for him, as Meyer had to request one
himself, Later an attorney, David Martin, was instructed by a
partner in his firm on behalf of Mrs. Meyer to contact Meyer as
soon as possible. Martin testified to the events of that day as
follows: Martin first called B.C.1. around 6:30 p.m. to speak
with Meyer and identifiea himself as Meyer’s attorney. He was
told then that Meyer was eating dinner and couldn’t speak to
him. When Martin tried again at 7:00 p.m., he was told that
Mever had been transferred to the Prince George’s County
Detention Center. Martin proceeded to the County Detention
Center in Upper Marlboro, only to find that Meyer was, in fact,
still at B.C.I, When Martin arrived at B.C.1. at approximately
8:30 p.m., he was told by an officer that Meyer had “just left”
for the County Detention Center. Martin returned to the Coun-
ty Detention Center and determined after a half hour search
that Meyer was not there. Another call to B.C.1I. sometime close
to 10:00 p.m. was placed, and Martin was again told Meyer was
on his way. This time Meyer did arrive sometime past 10:30
p.m. at the County Detention Center and was only then able to
meet with Martin.
On October 7, 1977, Prince George’s police searched Meyer’s
apartment during which they seized a pair of Meyer’s shoes later
introduced into evidence, and located Meyer’s car at his
mother’s home in Northern Virginia. The car was towed to a
Prince George’s police station, and searched, at which time the
police removed a black briefcase which was subsequently in-
troduced as evidence.
Later the police visited the home of the twelve (12) year old eye-
witness Darlene Brown, to show her a photo-spread compiled
9
and determined if she could identify Meyer as the man she
had reported seeing in front of the Lewis’ home the day of the
murders. Brown picked out Meyer from the collection of six
photographs. At trial Meyer strongly protested Brown’s iden-
tification as impermissibly suggestive. Meyer contended that
since her sighting had been made at a distance of approximately
100 yards, she was prone to remember only the most distinctive
features, such as his unusual height and hair style. In the photo-
spread Meyer was clearly the tallest and the only one to have
hair over his ears (all other five photos were of Prince George’s
detectives).
At his trial in April of 1978, Meyer’s salient defense centered
on the contention that his statements were made involuntarily,
which therefore made them inadmissible as the tainted product
of illegal detention, and denial of his Miranda rights. The delay
of nine (9) hours, Meyer contended, was illegal and thereby
tainted both statements taken that day. Meyer additionally con-
tended that both the in-court and out-of-court identification of
Meyer by Darlene Brown as impermissibly suggestive and
therefore inadmissible. Meyer lost on all fronts and was con-
victed for first degree murder of Carol Lewis and second degree
murder of the daughter, Heather. He received consecutive
sentences of life imprisonment and thirty (30) years respectiveiy.
Meyer appealed the conviction and was represented by a
Public Defender for that purpose. The issues raised on appeal
by the Public Defender included the failure of the police to bring
Meyer before a District Commission for formal charging
without unnecessary delay pursuant to Maryland District Rule
723, and therefore that is two statements were tainted by the un-
necessary delay and the Commissioner’s failure to advise him of
his right to counsel, as well as the identification of Meyer by
Darlene Brown as being impermissibly suggestive and, hence,
inadmissible. See, Meyer v. State, 43 Md. App. 427 (1979).
For the purposes of this Petition it is significant to note that
the Court of Special Appeals remarked that Appellant did not
10
challenge the voluntariness of his statement or the adequacy of
his Miranda rights. Meyer, supra, at 432, fn.4.
The Court of Special Appeals affirmed Meyer’s conviction,
finding that while the nine (9) hour delay was “unnecessary” and
improper, the first statement was inadmissable as being ex-
culpatory and “harmless.” The second statement was also ruled
admissable by that court as the product of a deliberate reflection
and independent decision. None of the questions concerning the
voluntariness of the Miranda rights or the denial of Meyer’s
right to counsel were raised by the Public Defender and were
therefore not addressed by the Court.
Meyer filed petitions for Certiorari to the Court of Appeals of
Maryland and this Court, both of which were denied. Meyer v.
State, 43 Md. App. 427, cert. denied, 286 Md. 750, cert. denied,
446 U.S. 938 (1979).
REASONS FOR GRANTING THE WRIT
I, THE PETITIONER WAS DENIED HIS RIGHT TO
PROTECTION AGAINST SELF INCRIMINATION
AS GUARANTEED BY THE FIFTH AND FOUR-
TEENTH AMENDMENTS BY THE USE OF THE
TWO STATEMENTS TAKEN DURING INTERRO-
GATION AGAINST HIM.
In order for Meyer’s conviction to stand, the State must have
etablished that Meyer made his two statements voluntarily, free
of inducement or coercion, having knowingly and intelligently
waived his right to remain silent. Miranda v. State of Arizona,
348 U.S. 436 (196); Mallory v. Hogan, 378 U.S. 1 (1964).
In the instant case, the State’s case against Meyer rested al-
most entirely on the two statements obtained on October 8,
1977, supported only by an uncertain identification made by
twelve (12) year old Darlene Brown. Absent a showing that
Meyer’s conviction was founded on two voluntary statements,
no other independent basis for his conviction exists. Petitioner
maintains that the State did not carry this burden of proof with
11
regard to establishing the voluntariness of the statements and
now seeks review of his conviction in light of the failure of his
previous counsel to raise this issue.
In the instant case, consideration of any single instance of
police conduct may not in itself appear to justify the conclusion
that Meyer’s statements were involuntary. Yet the entire se-
quence of events that transpired on October 8, 1977, taken as a
totality, evidences a disturbing pattern of police coercion
directed at extracting a confession from Meyer.
From the moment Meyer was first arrested on October 8,
1977, he was continuously held in a position of helplessness and
isolation. Detective Hatfield did not serve Meyer with a copy of
his arrest warrant, either upon arrest or anytime thereafter,
despite the requirements of Maryland District Rule 720 (f) and
Rule 720 (e), Maryland Rules of Procedure. These rules provide
that the accused is to be served a copy of the warrant “as soon as
possible after the arrest”, Maryland District Rule 720 (f).
If Meyer had been given a copy of his warrant, he could have
learned the nature of the State’s case against him without de-
pending on the police. Officer Hatfield made much of Lon
Lewis’ confession in his initial exchanges with Meyer, and of-
fered to read the confession through with Meyer soon after
Meyer’s arrest. Yet Meyer need not have depended on Hatfield
to provide the statement if he had been served a copy of his war-
rant, attached to which was a copy of the Lewis confession.
Hatfield, however, used the Lewis confession as a means of in-
ducing Meyer to make incriminating statements. Hatfield
testified that he took Meyer immediately to an interrogation
room at B.C.I. to read through Lewis’ confession with Meyer,
allegedly on Meyer’s request. The entire environment, however,
was fashioned to create a psychological dependence in Meyer
directed at inducing him to make a confession. According to his
own testimony, Hatfield repeatedly interjected questions during
his reading of the Lewis confession. This situation was certainly
the “functional equivalent” of an interrogation, during which
12
the accused is entitled to the protection of his constitutional
rights against coercive police practices, no matter how veiled,
Rhode Island v. Innis, 446 U.S. 291 (1980); Brewer v. Williams,
430 U.S. 387 (1977).
Mr. Meyer was held in interrogation with only brief interrup-
tions for approximately nine hours before he was taken before a
District Commissioner for formal charging as required by
Maryland District Rule 723. The language of this provision,
however, clearly demands that the accused be so charged before
a judicial officer without unnecessary delay. The Court of
Special Appeals held in its decision in Meyer v. State, 43 Md.
App. 427 (1979), that the delay in this case did indeed consti:ute
an “unnecessary delay” and it was therefore error to admit the
first statement because it was obtained in violation of Maryland
District Rule 723. See also, Johnson vy. State, 282 Md. 314
(1978). The admission of the statement made by Meyer during
that morning’s interrogation was not held not to constitute error
only because its admission was held “harmless.” Yet the Court,
in emphasizing the first statement’s largely exculpatory
character, ignores the holding in Miranda, supra, followed in
Maryland cases, that for purposes of admissibility, no distinc-
tion may be drawn between inculpatory statements and one al-
legedly exculpatory. e.g.: Lew v. State, 21 Md. App. 12, affd
after remand 29 Md. App. 457 (1974).
The Court of Special Appeals stated that their second state-
ment provided a sufficient basis for concluding that the
evidence against Meyer was “overwhelming”, which thus made
the admission of the first statement harmless. Such evidence as
“expert testimony concerning the nature of the wounds on the
victims’ bodies and the strength required to inflict such wounds”
was cited to reinforce the Court’s position that the evidence
against Meyer was “overwhelming”. This approach places the
cart before the horse, in that the Court used the later statement
to justify the admission of the earlier one, even though his day-
long interrogation, including the earlier statement was an im-
13
portant and crucial factor in his making that second statement.
It is established that even if the truth of a confession is shown
independently, the confession is inadmissible if it was obtained
in violation of the Defendant’s rights. Blackburn v. Copinger,
300 F. Supp. 1127 (D. Md. 1969). Similarly, adrnission of the
earlier statement cannot be justified by the Court’s belief that
Meyer’s guilt was established outside of the morning statement.
Admitting the earlier statement on the strength of the later
statement ignores the central question of the voluntariness of
either and overlooks the importance of the morning’s events in
the daylong pattern of coercion.
The Court of Special Appeals based its decision to affirm the
admission of Meyer’s evening statement on its interpretation of
Maryland District Rule 723 and Johnson v. State 282 Md. 314
(1978). The evening statement was heid admissible as the pro-
duct of an “independent act” and “deliberate reflection” and
thus not tainted by the earlier violation of Maryland District
Rule 723 and improper interrogation. Again, the crucial issue
for the present centers on the voluntariness of the evening state-
ment and Meyer’s alleged waiver of rights. The State was never
required to carry the burden of showing that Meyer’s alleged
waiver of rights was voluntary.
It is well established that a heavy burden rests on the State to
demonstrate that a defendant held incommunicado for a period
of interrogation waived his privilege against self-incrimination,
knowing and intelligently. Edwards v. Arizona, 451 U.S. 477
(1981).
The Supreme Court has further made clear that a valid waiver
will not be presumed simply from the silence of the accused
after warnings are given or simply from the fact that the confes-
sion was in fact eventually obtained. Miranda 384 U.S. at 475.
Meyer was held incommunicado throughout the day, and the
only evidence of the State could offer to establish any voluntary
waiver on Meyer’s part was the uncorroborated testimony of
Officers Hatfield and Morrissette.
Opposed to the State’s position is the uncontroverted
14
testimony of Mr. Meyer that he asked his wife to get him his
lawyer, the uncontroverted fact that the police refused to allow
Mrs. Meyer to see her husband at any time, and the uncon-
troverted testimony describing the pattern of misinformation
which prevented Mr. Martin, the attorney, from meeting with
Meyer. Further, police testimony admitted that Meyer was
returned to the Bureau of Criminal Investigations after his brief
appearance before the District Commissioner for the express
purpose of further interrogation, contrary to the Com-
missioner’s Commitment Order. The Court in Epps v. Levine,
457 F. Supp. 561, 567 (4th Cir. 1978) held that “under Maryland
law a person accused of a crime has (1) a right to have the state
court with jurisdiction over him .. . determine . . . to whose
custody he will be committed if pre-trial release is not available,
and (2) a right to remain in the custody of the designated officer
until further Court order.”
The fact that Meyer signed certain papers before Commis-
sioner O’Brien and evidently did not register any protest is not
dispositive of the waiver issue. The accused in Miranda had
signed a written waiver of rights something Meyer never did yet
the Supreme Court found it to be an invalid waiver of his rights
as it was not a “knowing and intelligent” waiver. Miranda, 384
U.S. at 475. The circumstances of Meyer’s exceedingly brief
meeting with O’Brien hardly warrants a presumption of an in-
formed broad waiver of rights. Lasting no more than ten (10)
minutes, O’Brien read Meyer the charges and informed him of
certain rights, particularly those regarding the availability of
public counsel. O’Brien himself testified that it would have
taken him over an hour to read and fully understand the charg-
ing document that Meyer signed.
An appellate court, in considering the voluntariness of the
Defendant’s statements, is not bound by determination of the
trial judge or jury. The constitutional concerns of due process
and the privilege against self incrimination subject the issue
of a confession’s admissibility to independent judicial review.
Haynes v. Washington, 375 U.S. 511, 515 (1961).
15
The Court of Special Appeals in Meyer v. State. 43 Md. App.
427, 432 at fn. 4 (1978) did not review this issue, nor was it prop-
erly placed before the Court of Appeals. While the prior ap-
pellate proceedings had focused upon the delay of presentment
issue as interpreted in Johnson v. State, supra, the fundamental
issue of the voluntariness of Meyer’s statements and the viola-
tions of his constitutional privilege against self incrimination
should now, all too belatedly, form the focus of judicial review.
The fact cannot be ignored that Meyer’s statements constituted
almost the entire case against him; the other evidence taken
alone could never support a conviction.
Il. THE PETITIONER WAS DENIED HIS RIGHTS TO
ASSISTANCE OF COUNSEL AS GUARANTEED BY
THE SIXTH AND FOURTEENTH AMENDMENTS
DURING THE UNREASONABLY LONG AND UN-
LAWFUL DETENTION FOR PURPOSES OF IN-
TERROGATION.
Following Meyer’s arrest his wife, accompanied by her
mother and two friends, waited unsuccessfully to see Meyer.
Mrs. Meyer then contacted an attorney, who instructed an
associate, David Martin, to contact Meyer immediately. Martin
visited the Prince George’s Bureau of Criminal Investigations
(BCI) in Forestville, Maryland. He was told that Meyer had
been transferred to the Prince George’s County Detention
Center. Martin went to the detention center whereupon it was
disclosed to him that Meyer was still at BCI. As discussed in the
statement of facts Martin first called BCi at approximately 6:30
p.m. to speak with Meyer and identify himself as Meyer’s at-
torney. Due to the misinformation which had been supplied to
him by the police and county agents, Martin was unable to meet
with Meyer until after 10:30 p.m. at the County Detention
Center.
Although the evidence at the pre-trial suppression hearings
was conflicting the trial judge ruled that Meyer had voluntarily
waived his Miranda rights to have an attorney present during his
16
interrogation. The Maryland Court of Special Appeals affirmed
this finding in Meyer v. State, 43 Md. App. 427 (1979). However,
neither the Court of Special Appeals in that opinion, the post-
conviction opinion by the Honorable James Taylor of the
Prince George’s County Circuit Court, nor the Court of Special
Appeals of Maryland opinion refusing to grant Meyer’s Ap-
plication for Leave to Appeal Judge Taylor’s findings addressed
the issue raised respecting police officials’ failure to inform
Meyer that an attorney was seeking to discuss Meyer’s arrest
with him.
Among Constitutional safeguards are the right to remain
silent, that any statement the Defendant makes may be used
against him, and that the Defendant has a right to the presence
of counsel. These rights may be waived if the waiver is volun-
tary, knowing, and intelligent. However, if the Defendant in-
dicates in any manner that he wants the presence of an attorney,
all questioning must cease. Miranda, supra, at 444-445;
Michigan v. Mosley, 423 U.S. 96 (1975).
This principle was again reaffirmed i the recent case of Ed-
wards v. Arizona, 451 U.S. 477 (1981) in which this court stated
that where a defendant asserts his right to counsel that defend-
ant may not be reinterrogated unless he freely and voluntarily
initiates the further communication, exchange, or conversation
with the police.
Clearly the rationale behind the above-cited opinions centers
on the right of a defendant to be free from coercion and to pro-
tect the defendant from being pressured into making incul-
patory statements under pressure. Therefore, once the request
for counsel is made, it is improper for the police authorities to
continue interrogation unless the defendant initiates the com-
munication. Otherwise, any statement made by the defendant
without having had access to counsel does not amount to a valid
waiver of his right to counsel and is hence inadmissible. Ed-
wards, supra, at 487. See also, Oregon v. Bradshaw, ____ U.S.
—___., 51 L.W. 4940 (1983).
17
Even assuming, arguendo, that the several conflicts between
the police officers and the Petitioner in the testimony presented
at the pre-trial suppression hearings concerning the treatment of
Meyer by the police and the Miranda rights are resolved in favor
of the State, Meyer v. State, 43 Md. App. at 432, fn. 4, the issue
remains that where a suspect does not know that an attorney
who has been retained to represent him is actually in the police
station seeking an opportunity to render legal assistance and the
police do not inform the suspect of that fact then there can be
no intelligent and knowing waiver of Miranda rights.
Recent case law has held that a suspect who may be indif-
ferent to the usual abstract offer of counsel recited as part of the
Miranda warning would not necessarily disdain a chance to con-
sult a lawyer who is waiting to see him then and there. Weber v.
State, 457 A.2d. 674 (Del. 1983); State v. Haynes, 602 P.2d 272
(1979); State v. Mathews, 408 So. 2d 1274 (La. 1982). As was
stated in Weber, supra, the rights established by Miranda were
designed to eliminate some of the more outrageous interroga-
tion methods employed at that time. Not only did police resort
to physical violence to obtain incriminating evidence, but a
variety of psychological tactics were used including isolation of
the suspect and deception. Miranda, at 445-58. To allow the
police to use tactics which prevent or forestall a suspect from ex-
ercising his rights is inconsistent with the clear purpose of
Miranda. Weber, supra at 685; Commonwealth v. McKenna,
244 N.E. 2d 560 (Mass. 1969); Commonwealth v. Hilliard, 370
A.2d 322 (Pa. 1977).
The State court decisions cited in Weber, supra, suggests that
the police tactic of preventing an attorney from seeing a client
he is seeking to visit is incongruous with the concept of a know-
ing and intelligent waiver.
Whatever the testimony of the authorities as to
waiver of rights by an accused, the fact of lengthy in-
terrogation or incommunicado incarceration before a
statement is made is strong evidence that the accused
did not validly waive his rights. In these cir-
18
cumstances the fact that the individual eventually
made a statement is consistent with the conclusion
that the compelling influence of the interrogation
finally forced him to do so. It is inconsistent with any
notion of voluntary relinquishment of the privilege.
Moreover, any evidence that the accused was
threatened, tricked, or cajoled into a waiver will, of
course, show that the defendant did not voluntarily
waive his privilege. Miranda, at 476.
These state court decisions have forged a rule which effec-
tuates the protection given to the accused by Miranda and its
progency. If prior to or during custodial interrogation, and
unknown to the suspect, a specifically retained or properly des-
ignated lawyer is actually present at a police station seeking an
opportunity to render legal advice or assistance ot the suspect,
and the police intentionally or negligently fail to inform the
suspect of that fact, then any statement obtained after the police
themselves know of the attorney’s efforts to assist the suspect,
or any evidence derived from an such statement, is not ad-
missable on any theory that the suspect intelligently and know-
ingly waived his right to remain silent and his right to counsel as
established by Miranda. Weber, supra, at 686, and cases cited
therein. Where an attorney presents himself at the police station
or other site of interrogation the police may not ignore or refuse
to communicate with that attorney who is seeking to assist his
client. This rule should apply whether the attorney was retained
by the suspect or by a third party acting on behalf of or for the
suspect. Jd.
In the instant case the record reveals that Mrs. Meyer re-
tained an attorney who sent his partner to meet with Meyer at
BCI. Although the police were well aware, as early as 6:30 p.m.
on the day of the arrest that the attorney was attempting to meet
with Meyer, the attorney was wrongfully misinformed re-
peatedly as to Meyer’s whereabouts. The attorney was not able
as a result of the police diversion to meet with Meyer until over
four hours after his initial attempt to contact Meyer.
19
It is highly significant that Meyer never signed a waiver form
following the taking of his first statement. Nor did Meyer sign a
formal waiver of his rights after being taken before the District
Commissioner. Finally, after a second statement was taken
from Meyer he was given a written waiver of rights to sign,
which he once again refused to sign. The police officer who
prepared the typed statement was instructed to ask Meyer
whether or not he had been advised of his constitutional rights
by the Commissioner, Meyer replied that he did not remember
being so advised.
Ill. THE PETITIONER DID NOT WAIVE ANY RIGHT
TO APPEAL THE ISSUES OF THIS PETITION
BECAUSE OF INADEQUATE REPRESENTATION
BY THE PUBLIC DEFENDER IN THE APPEAL OF
THE CIRCUIT COURT CONVICTION
At his trial in April, 1978 Meyer’s defense focused on (a) his
contention that statements that he made to the police were in-
voluntary and were therefor inadmissable as a tainted product
of an illegal detention, and that he was denied his rights under
Miranda v. State of Arizona, 384 U.S. 436 (1966), and (b) that
the actions of the police denied him the right of the assistance of
counsel as guaranteed by the United States Constitution.
Meyer also argued that the police had not properly brought
him before a District Commissioner for formal charging within
the time restriction set for in the Maryland Rule. Maryland Dis-
trict Rule 723. Meyers contended that the nine-hour delay in
bringing him before the Commissioner was illegal and thereby
tainted both of the two statements he gave the police that day.
Johnson v. State, 282 Md. 314 (197. Finally, Meyer contended
that both the in-court and out-of-court identification of him by
a witness was impermissably suggestive and therefore inad-
missable.
20
Meyer was unsuccessful on all of these arguments and was
convicted of the first degree murder of Carole Lewis and the
second degree murder of her daughter, Heather. On appeal,
Meyer’s case was handled by the Maryland Public Defenders’
Office. The issues of the voluntariness of Meyer’s statements
and the denial of counsel during interrogation were not raised
on appeal by his counsel. The Public Defender focused its ap-
peal on the alleged violation of Maryland District Rule 723 and
the delay in bringing Meyer before the Commissioner, along
with the question of the admissability of the witness’ identifica-
tion of Meyer.
The Maryland Court of Special Appeals affirmed the convic-
tion 'n Meyer v. State, 43 Md. App. 427 (1979). In that reported
opinion the court noted in a footnote that “at the trial the jury
also heard the conflicting testimony concerning the treatment of
the Appellant by the police. We note that the Appellant does
not, on appeal, challenge the voluntariness of his statements or
the adequacy of his waiver of his Miranda rights.” Meyer,
supra, at 432. In fact, Meyer had directed his Public Defender
by letter to raise the issue on appeal of the prevention by the
police of his attorney’s repeated efforts to see him during his in-
terrogation. (App. A). However, he was informed by the Public
Defender that she had chosen to drop the issues on appeal,
viewing them as unwinable or “credibility” issues. (App. B).
Furthermore, the Public Defender did not confer with Meyer
before preparing a filing his Brief to the Court of Special Ap-
peals. She met with Meyer for the first time to discuss what
issues were to be raised on appeal the day after the Brief was
filed. The Affidavit filed in support of Meyer’s Petition for Post
Conviction Relief in Maryland established that Meyer did not
waive those two critical issues on direct appeal and that his
Public Defender decided, sua sponte, not to raise those issues.
(App. E)
The rights of the criminal defendant were extended in the
Landmark decision in Anders v. California, 386 U.S. 738 (1967)
2]
wherein the Supreme Court stressed that a defendant’s counsel
must act in the role of an active advocate on behalf of his client
and that he must support his client’s appeal to the best of his
ability.
In the reent case of Barnes v. Jones, 665 A 2d 427 (2nd. Cir.
1981) the Court of Appeals for the second circuit discussed
Anders, supra, and quoting from High v. Rhay, 519 F.2d. 109
(9th Cir. 1975) noted that where an appellant urges his attorney
to make a non-frivolous argument, “appointed counsel . . . has
a duty under Anders not only to raise such a non-frivolous or
colorable points an to admit the frivolous arguments. Alter-
natively, as indicated by the ABA Standards, Criminal Appeal,
Section 3.2 (1970), commentary d at 79, the appellate counsel
may include the frivolous question in his Brief but deal with it
sketchily.
However, it is crucial to stress that Anders, supra, compels
the appointed attorney to argue non-frivolous appeals at the
defendant’s request. The Public Defender’s judgment that the
appellant is unlikely to prevail on the merit of his non-frivolous
arguments is no substitute for an active advocates presentation
of those arguments to the appellate court. Anders, supra;
Barnes, supra, at 433.
“Thus appointed counsel’s unwillingness to present
particular arguments at Appellant’s request functions
not only to abridge Defendant’s right to counsel on
appeal, but also to limit the Defendant’s constitu-
tional right of equal access to the appellate process in
order to redress asserted errors at trial — the very
right that an appointment of appellate counsel was
designed to preserve.” (case citation omitted).
The decision to forego potentially meritorious issues on ap-
peal requires as much client input as does the decision whether
to appeal in the first instance. In Barnes, supra, at 435 the Court
quoted Ennis v. LeFevre, 560 F.2d 1072, 1077 (2d. Cir. 1977),
cert. denied, 435 U.S. 976 (1978): “Whether to raise an issue, if
a serious [one] may perhaps may not be left entirely to the
22
lawyer’s decision.” The court in Barnes, supra, noted that the
Code of Professional Responsibility recognizes that the authori-
ty to make decisions is often times exclusively that of the client
and that “the lawyers should always remember that the decision
whether to forego legally available objectives or methods
because of non-legal legal factors is ultimately for the client and
not for himself.” EC 7-8. In this sense the functions and duties
of assigned defense counsel do not differ from those of retained
counsel,
In the instant case, Meyer wrote to his assigned attorney and
requested that certain issues be raised on appeal. However, his
attorney chose to disregard those requests and disregard the
issues Of whether Meyer’s statements were voluntary, whether
his waiver of Miranda rights were voluntary, and the issue of
whether or not his counsel was denied the opportunity to meet
with him when so requested. Those issues are certainly “col-
orable claims” which should not have been totally abandoned
by his Public Defender, especially after Meyers requested that
those issues be addressed on appeal.
Case law indicates that once a defendant demonstrates that
his appointed counsel failed to argue colorful claims at his re-
quest, that defendant need not also demonstrate a likehood of
success on the merits of those claims. Barnes, supra, at 434,
quoting High, supra, at 113. See also, Robinson v. Wyrick, 635
F.2d 757 (8th Cir. 1981); Horsley v. Simpson, 400 F.2d 708 (Sth
Cir. 1968).
As was stated in Miller v. McCarthy, 607 F.2d 854 (9th Cir.
1979), under the Anders, supra, case a defense counsel may not
“sabotage his client’s appeal by inaction even if he thinks it
without merit.” at 857. In Miller, supra, the attorney failed to
meet with the Defendant to discuss an appeal despite the De-
fendant’s continued request that he do so. Similarly in U.S. v.
Neff, 525 F.2d 361 (8th Cir. 1975), the court noted that if an at-
torney failed to carry out his client’s express instructions to ap-
peal or fails to see that client is informed of the appeal, the
client is demed without the effective assistance of counsel. The
23
counsel should give the defendant his professional judgment as
to whether there are meritorious grounds for appeal and as to
the probable result of appeal. But the decision whether to ap-
peal must be the defendant’s own choice.
Similarly, under the Anders doctrine the decision to raise col-
orable issues on appeal should also be left to the defendant and
not ignored by his appellate counsel. Compared, Telesco v.
Scully, 541 F.Supp. 822 (D. N.Y. 1982) wherein unlike in the
instant case the Defendant did not allege that he requested that
a certain claim on an appeal be raised.
IV. THE EXCLUSION OF THE PETITIONER FROM A
BENCH CONFERENCE DURING A COMMUNICA-
TION FROM THE JURY VIOLATED HIS RIGHT
TO BE PRESENT AT ALL STAGES OF HIS TRIALS
AS GUARANTEED BY THE U.S. CONSTITUTION,
Following the conclusion of his instructions to the jury in the
April, 1978 murder trial, the trial Judge received a note from
the jury foreman requesting copies of Maryland Rule 723, the
other laws cited by counsel during trial, and the transcript of
testimony. The Court called the opposing counsel to a bench
conference during which he recited the jury’s request and in-
formed them of his decision to deny it. Meyer’s attorney did not
object or question the ruling despite the fact that Meyer’s case
relied, to a great extent, on a proper and accurate application of
Maryland Rule 723. The text of this Rule had been read by the
Court to the jury in its instructions, at which time the judge in-
formed the jury that it was their responsibility to find the proper
law in the case and apply the facts to it. This unique role of the
jury, as the trier of both fact and law under Maryland law,
necessitated a clear understanding of the applicable law at issue.
A copy of statutes recited and Maryland Rule 723 may have
better aided the jury in attaining accuracy in its deliberations
than reliance on their memory. It is undisputed that it is within
discretion of the judge to regulate what items are allowed into
24
the jury room during deliberation of the judge to regulate what
items are allowed into the jury room during deliberation.
Refusal of the jury’s request, however, hampered their ability to
assess Meyer’s claim that the improper delay in his presentment
before a judicial officer made his statements inadmissible.
The right of a criminal defendant to be present at every stage
of his trial is a common law right preserved by Article 5 of the
Maryland Declaration of Rights, and in some measure by the
14th Amendment of the U.S. Constitution, Faretta v. Califor-
nia 422 U.S. 806 (1965); Bunch v. State 281 Md. 680 (1980);
Brown v. State 272 Md. 450 (1974). This right is additionally
guaranteed by Maryland Rule 724 which provides that “the
Defendant shall be present at every stage of the trial... except as
provided by these Rules”. The pertinent exception concerns any
“conference or argument on a question of law”. Maryland Rule
724(b)(1).
Maryland case law has attempted to distinguish between those
events covered by the Rule aid those not considered a “stage of
the trial”. Thus, procedural questions discussed during a recess,
and discussions on the law regarding a directed verdict have
been held not to require the presence of the defendant. Brown vy.
State 272 Md. 450 (1974); Martin v. State 228 Md. 311 (1962).
The controlling principle possible was best expressed in Hughes
v. State 288 Md. 261, 224 (1980), which quoted approvingly
Justice Cardoza’s opinion in Snyder v. Massachusetts 291 U.S.
97 (1934). The defendant’s right to be present at his trial extend-
ed, Cardoza stressed, to “whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to de-
fend against the charge.” Hughes v. State 288 Md. at 224. To
sustain Meyer’s contention that his exclusion from bench con-
ferences at his April 1978 trial violated his rights and constituted
reversible error, “it must be shown (a) that the bench con-
ferences were stages of the trial at which (Meyer) had a right to
be present, (b) that (Meyer) was not, in fact, present, and (c)
that (Meyer) did not waive his right to be present.” Haley v.
25
State 40 Md. App. 349 (1978). In the instant case, all three
elements are found.
Considering the first element in establishing a violation of the
Defendant’s rights cited in Ha/ey, communications between the
judge and jury concerning their instructions certainly qualify as
a “stage of the trial” at which a Defendant has a right to be pre-
sent. The Court of Appeals of Maryland in Porter v. State 289
Md. 349, 353 (1979) observed that “whether a particular event
occurred during a stage of the trial ordinarily involves a con-
sideration of when an event occurred and what was involved.”
The bench conference in question occurred at a critical stage of
the trial, and involved a matter of importance to Meyer’s
defense. Issues which involve communications with the jury
“relating to their verdict” have been held to constitute stages of
the trial when the Defendant has a right to be present with the
exception of issues of procedure or questions of law, Bunch y.,
State 281 Md. at 634. The Court of Appeals of Maryland was
quite clear on this point in Midgett v. State 216 Md. 26, 36
(1957):
In this state there is no doubt than an accused in a
criminal prosecution for a felony has an absolute
right to be present at every state of his trial from the
time the jury is impaneled until it reaches a verdict or
is discharged, and there can be no valid trial or judg-
ment unless he has been afforded that right. The Con-
stitutional guarantee includes the right of the accused
to be present (i) when the jury is charged or instructed
on the facts, the law or form of the verdict, before it
has begun its deliberations or afterwards upon its re-
quest or by direction of the Court; (iii) when the
Court communicates with the jury in answer to ques-
tions propounded by the jury, or (iv) when there shall
be any communication whatsoever between the Court
and the jury; unless the record affirmatively shows
that such communications were not prejudicial or had
no tendency to influence the verdict of the jury.
26
The communication between the court and the jury in Meyer’s
trial was certainly a “stage of the trial” involving “questions pro-
pounded by the jury” which could well have had a “tendency to
influence the verdict of the jury”. Meyer had a right to be pre-
sent during all jury instructions, including those which are in-
itiated at the jury’s behest.
With regard to the presence or absence of Meyer at the bench
conference during his trial, the trial transcript does not indicate
his presence, noting only that “Counsel approached the bench”.
(At 1:45 o’clock, p.m., trial in the above-entitled
matter was resumed.)
THE COURT: Gentlemen, come up, please.
(Whereupon, counsel approached the bench and
the following conference was had, the jury not being
present.)
THE COURT: At the luncheon recess, the foreman
inquired whether he could ask me a question. I said to
put it in writing.
The question is: “Can we have copies of the law
regarding defendant’s rights re: 723, any laws read to
us by attorney. Three, the testimony.”
I am putting this in the Court’s file and will tell the
jury foreman the answer to the inquiry is “No.”
Let’s go.
MR. DePAUL: Thank you, Judge.
(Whereupon, counsel returned to trial table and the
jury took their place in the jury box, after which the
following proceedings were had in open court:)
THE COURT: All right. Mr. Sauerwein, before
you proceed, sir, Mr. Dunn, in regard to the note that
you gave me during the luncheon recess, the an: wer
to your question is “No.”
THE FOREMAN: Thank you.
THE COURT: All right. Mr. Sauerwein, you may
27
Unless the record is clear in affirmatively indicating that the
defendant was present, the court cannot presume his presence
from a silent record. Rather, the court must require, as a matter
of State procedure, “that the complete facts be brought out in
post conviction procedures”. Haley v. State 40 Md. App. 349,
354 (1978); Green v. State 23 Md. 680 (1974). See also State v.
Zimmerman 261 Md. 11 (1973).
Similarly in Shields v. U.S., 273 U.S. 583 (1972), the Supreme
Court held it was reversible error for the trial judge without giv-
ing notice to the defendant to send a written instruction to the
jury.
The right of the defendant to be present at every critical stage
of the trial is personal to him and cannot be waived by his
counsel. Porter v. State 289 Md. 349 (1981); Bunch v. State 28
Md. 680; Midgett v. State 216 Md. 26; Haley v. State 40 Md.
App. 349. The record does not indicate whether Meyer was
aware of what transpired during the bench conference, let alone
waived his right to be present under Rule 724. As with the issue
of actual presence of the defendant, a silent record cannot
create a presumption of waiver, but must be determined in post-
conviction procedures. Haley v. State 40 Md. App. at 355;
Nobel v. State 46 Md. App. 154 (1980). Likewise, the fact that
Meyer’s public attorney chose, contrary to Meyer’s expressed
wishes, not to raise this issue on appeal cannot be construed as a
waiver on Meyer’s part. Noble v. State 46 Md. App. 154, 159
(1980). The court recently reaffirmed this position on waiver in
Noble v. State, No. 8a Md. Court of Appeals 7, filed June 7,
1982, by holding that “under a long line of cases in this Court,
an effective waiver of the right to be present must be done by
the defendant personally and must be done expressly. See
Williams v. State 292 Md. 201; Porter v. State 289 Md. 353
(1981); Bunch v. State 281 Md. 680 (1978). Any modification of
the right as announced in Williams v. State is to apply prospec-
tively only. Williams v. Stzte 292 Md. at 220. Thus any waiver
of Meyer’s right to be present at all stages of his trial must be
shown to have been made personally and expressly by him.
28
CONCLUSION
For the reasons stated above, the Petitioner respectfully re-
quests that this Court issue a Writ of Certiorari to the Court of
Special Appeals in Maryland and reverse the judgment of the
lower court denying Petitioners’ Petition for Post Conviction
Review.
Respectfully submitted,
JOHN T. BELL
(Counsel of Record)
BELL, CORNELIUS & SHORE
101 West Jefferson Street
Rockville, Maryland 20850
Attorney for Petitioner
la
APPENDIX A
11/6
Dear Ms. Sweeney
I have just come from a meeting. To my astonishment I
have discovered that the Public Defender’s office did not
appeal the Court’s decision of admitting the statements in-
to the case. As you are aware I specifically requested you
to appeal both these points:
The point of the refusal of the Police to allow my
attorney to meet with me, as well as the Point of
the Police threat of force and the other things
that happened to me!
Whatever are you trying to do to me!
Mr. Seekford tells me that if my mother hires him the
the Public Defenders Office may want the transcript to be
paid for! I can not pay for the attorney except through my
mother, my mother can not pay for both the attorney and
the transcript. Please do not charge for the transcript so
that I may have Mr. Seekford represent me.
I would like for you to turn over the transcript of the en-
tire proceedings and all the appeal papers to him so that he
may continue the appeal, as you know I am still indigent
and could not hire an attorney by myself.
You always said you wanted to help me!
Respectfully,
Gene T. Meyer
2a
APPENDIX B
OFFICE OF THE PUBLIC DEFENDER
8TH FLOOR
EQUITABLE BUILDING
BALTIMORE, MARYLAND 21202
TELEPHONE: 333-3050
ALAN HAMILTON MURI
PUBLIC DEFENDER
MARVIN MANDEL ALFRED A. O'FERRALL II
GOVERNO™ DEPUTY PUBLIC DEFENDER
[Rec. 11/13/79]
November 9, 1979
Gene T. Meyer, #4495
Post Office Box 700
Jessup, Maryland 20794
Dear Mr. Meyer:
I have received your letter of November 6, 1979. I am
sorry that you are upset, and I believe at least some of this
is due to a misunderstanding, so let me try to straighten it
out.
First, I told Mr. Seekford that I did not know whether
or not our office would require him to pay for the tran-
script, and suggested that he call Dennis Henderson, who
handles such administrative details, in order to find out.
He apparently had not done so before he talked with you
on November 6. He has now done so, and Mr. Henderson
told him that we would lend him the transcript at no cost.
Your mother will not have to pay for the transcript. I had
told Mr. Seekford before, and I will tell you, that I will be
happy to co-operate with him in any way I can, and that
my file is open to him.
Secondly, I am surprised at your astonishment as to
what issues were raised in the Court of Special Appeals. I
believe we discussed this when I met with you at the
Maryland Penitentiary on November 9, 1978. I subse-
3a
quently sent you a copy of the brief so that you would see
exactly what issues were raised. It was my belief, at the
time of our initial interview, and it is still my belief today,
that your contention that the police threatened you and
refused to allow you to see an attorney was a credibility
issue which the trial court decided against you, and which
was therefore, unappropriate for appellate review. I
believe I told you at that time that I would include these
facts in the brief, but not make a specific issue of it
because I did not think that we could win on it as a
separate issue. Mr. Seekford may now have a different
opinion, and you and he may pursue it, but I don’t think I
have misled you, and I don’t think I have injured your
cause.
I understand that you are upset. It is upsetting to think
that a lawyer you relied on was not looking out for your
best interest. Rest assured that that is not true. I have done
everything I could for you. I did try to help; I am not now
trying to do otherwise. I hope Mr. Seekford will be able to
convince the court to give you the relief you want.
Good luck in the future proceedings.
Sincerely,
/s/ Geraldine Kenney Sweeney
Geraldine Keeney Sweeney
Assistant Public Defender
Appellate Division
383-6123
GKS/es
I do not know if you got a copy of this but I have the
envelope from 11/8/78 postmark — that I received the
Public Defenders Brief in!
The brief was mailed to me before she saw me! The brief
was printed up and mailed before she came to discuss the
case!
da
APPENDIX C
Appeal from the Circuit Court for Prince George’s
County (Levin, Jacob S.J.).
Gene Thomas Meyer was convicted in a jury trial of first
degree and second degree murder and from judgments
entered thereon, he appeals.
Judgments affirmed; cost to be paid by appellant.*
The cause was argued before Morton, Moore and Lowe,
JJ.
Geraldine Kenney Sweeney, Assistant Public Defender,
with whom was Alan H. Murrell, Public Defender, on the
brief, for appellant.
Kathleen M. Sweeney, Assistant Attorney General, with
whom were Francis Bill Burch, Attorney General, Arthur
A. Marshall, Jr., State’s Attorney for Prince George’s
County,and Joseph C. Sauerwein, Deputy State’s At-
torney for Prince George’s County, on the brief, for ap-
pellee.
Moore, J., delivered the opinion of the Court.
A mother and her three-month old infant were stabbed
to death in their Bowie, Maryland home. Appellant, Gene
Thomas Meyer, was convicted of first degree murder of
the mother and second degree murder of the child and
received sentences of life imprisonment and thirty years,
to be served consecutively. On this appeal, the major issue
prsented involves Maryland District Rule 723 (M.D.R.) re-
quiring an arrrested person to be presented “without un-
*Note: Certiorari denied, Court of Appeals of Maryland, December
20, 1979.
Sa
necessary delay” before a judicial officer. Appellant, rely-
ing upon Johnson v. State, 282 Md. 314, 384 A.2d 709
(1978), contends that two statements obtained from him
by the police should have been suppressed as products of
an unnecessary delay in presenting him before a District
Court Commissioner. In opposition, the State argues: that
Johnson should only be applied prospectively to arrests
occurring after April 6, 1978, the date of the decision; and
alternatively, that the delay in presentment was necessary,
that the admission of the first statement, if erroneous, was
harmless; and that the second statement was a product of
deliberate reflection.
Appellant has also challenged an in-court identification
allegdly made under “impermissibly suggestive circum-
stances;” the introduction of allegedly inflammatory color
photographs of the crime scene and of the autopsy; the ad-
missibility of opinions contained in the autopsy reports;
the seizure of his automobile in Virginia by Prince
George’s County (Maryland) Police; and a jury instruction
containing a reference to “probable cause.” Finding no
reversible error, we shall affirm.
The record of the suppression hearings discloses that,
on September 23, 1977, Lon Alec Lewis, after finishing
work, returned to his home in Bowie and found, in the kit-
chen, the bodies of his 27-year-old wife, Carol, and
3-month old baby, Heather. He summoned help from a
neighbor, and the police were called. Both Carol and
Heather had been the victims of an assailant who had
brutally stabbed them to death with a knife.
Over the next two weeks, Lon Lewis fully cooperated
with the police. He permitted them to search his home and
6a
consented to being interviewed. During the course of those
interviews, Mr. Lewis admitted having a girlfriend in
Texas who had been communicating with him by letters
mailed to Mr. Lewis at the address of appellant, Gene
Meyer. On October 6, 1977, a Prince George’s County
police officer visited the appellant at his Rockville,
Montgomery County, apartment to obtain any of the
Texas girlfriend’s letters that Mr. Meyer might have been
holding for Mr. Lewis. Although Mr. Meyer did not have
any letters, he was interviewed, and a written statement
was taken in which he discussed Mr. Lewis’ Texas liaison.
Mr. Meyer stated that he learned of Mr. Lewis’ girlfriend
when he and Mr. Lewis had spent a week in Texas atten-
ding a training program sponsored by their employer.
The next day, October 7, 1977, Lon Lewis was further
questioned by the police. Early in the evening he admitted
his complicity in the murders of his wife and child and was
arrested.' Over the next few hours he gave a writtten
statement to the police describing in detail an agreement
between himself and Mr. Meyer in which the murders of
their wives had been planned.
Acting upon this information and the description pro-
vided by a witness who saw a man approaching the Lewis
house shortly before the murders were committed, the
police obtained a warrant for the arrest of the appellant.
At 7:15 a.m., on October 8, 1977, Mr. Meyer was arrested
‘After the trial of the appellant herein, Mr. Lewis was tried and
convicted as an accessory before the fact to the murders for which the
appellant has been convicted as the principal. Mr. Lewis’ conviction
was recently reversed by the Court of Appeals, and the case was
remanded for a new trial. Lewis v. State, 285 Md. 705, 404 A.2d 1073
(1979).
7a
at this apartment in Rockville, handcuffed, placed in the
back seat of a police cruiser, and given his Miranda warn-
ings.?
Detective David Hatfield, who rode in the police cruiser
during the trip to the Bureau of Criminal Investigation
(BCI) in Forestville, Prince George’s Cunty, from Rock-
ville, testified at the pretrial suppression hearing and
described appellant’s reaction when told of the Lon Lewis
statement. Mr. Meyer wanted to see the Lewis statement
and told Detective Hatfield that the police would have to
“prove it” because it was Mr. Lewis’ word against his.
Upon arriving at BCI, the appellant was placed in an in-
terrogation room, unhandcuffed, and offered some cof-
fee. Detective Hatfield obtained the Lewis statement, and
together the two men spent almost two hours reading the
14-page typed and handwritten document. Detective Hat-
field testified that Mr. Myer, after reading the statement,
offered to tell his side of the story: “[H]e said he would
give a truthful response.”
Over the next six hours, until shortly before 4 p.m., Mr.
Meyer gave a statement which was transcribed by Detec-
tive Hatfield. In this statement (the first statement) the ap-
pellant denied any involvement in the murders. Instead, he
blamed Lon Lewis, stating “When I heard the news that
she got killed I figured he did it or got someone to do it.”
Appellant also expanded upon his previous discussion of
the Lewis Texas tryst, and he admitted being at the Lewis
home on Thursday, September 22, 1977, the night before
the murders. He also acknowledged owning a cream-
colored suit and a briefcase.
’Miranda v. Arizona, 384 U.S. 436 (1966).
After giving this first statement, the appellant was
transported to Upper Marlboro from BCI and presented
before Districtd Court Commissioner Michael J. O’Brien
at 4:15 p.m. The Commissioner certified that he informed
the appellant of his rights set forth in the charging docu-
ment,’ and the appellant similarly signed an acknowledg-
ment of receipt of such rights.
On the trip back to BCI from the Commissioner, Mr.
Meyer indicated that he was hungry. A steak dinner was
purchased, and the appellant ate his dinner back at BCI in
an interrogation room. Detective Corporal Michael K.
Morrissette was present while the appellant had dinner,
and according to Corporal Morrissette’s testimony he
engaged the appellant in general conversation, discussing
his upbringing, background, job, and marriage.
At 6 p.m., Corporal Morrissette read the Miranda
warnings to the appellant. He orally waived his rights and
expressed a willingness to talk to the police. During the
next three hours, the story gradually unfolded. The ap-
pellant admitted killing 3-month old Heather, but stated
that it was an accident. He also confessed to the stabbing
of Carol Lewis. At 9 p.m., there was a twenty-minute
break during which Corporal Morrissette prepared to take
a written statement from the appellant. From 9:20 to
10:00, the two men worked on a written statement (the sec-
ond statement); Corporal Morrissette typed each of the
four pages and Mr. Meyer signed each page at the bottom.
*M.D.R. 723 (b\(2) provides that the “judicial officer shall require
the defendant to read the advice of right to counsel printed on the
charging document . -” and “shall certify in writing that the defend-
ant has read the advice as to the right of counsel in his presence . .
Commissioner O'P-ien did make such a certiication. The contents of
the advice are prescribed by M.D.R. 711 (a) and were accurately
reproduced in the charging document in the instant case
9a
After the confession was completed, the appellant was
asked to sign a written waiver of rights, but he refused.
Shortly after 10:00 p.m., Mr. Meyer was transported to
the Prince George’s County Detention Center from BCI.
Hearings on the appellant’s motion to suppress
evidence, including the first and second statements, were
held over a period of four days during March and April,
1978.4 Judge Jacob S. Levin denied the motions. Trial
commenced April 20, 1978 on two counts of murder in the
first degree. On April 26, 1978, the jury returned verdicts
finding the appellant guilty of the first degree murder of
Carol Lewis and the second degree murder of Heather
Lewis.
I]
The appellant first urges that the trial judge was in error
when he denied the appellant’s motion to suppress the two
statements taken after the appellant’s arrest. It is his con-
“There were several conflicts between the police officers and the ap-
pellants in the testimony presented at the pretrial suppression hear-
ings. Mr. Meyer testified that the police continually called him “Crazy
Man”; told him he had no rights; denied him food, the use of
bathroom facilities, and access to a telephone; and hit him on the head
whenever he asked for an attorney. This testimony was flatly con-
tradicted by the testimony of Officers Hatfield and Morrissette. Judge
Levin chose to believe the police officers’ version. The credibility of
witnesses at a pretrial suppression hearing is for the determination of
the trial judge, Boone v. State, 2 Md. App. 80, 95-96, 233 A.2d 476,
485 (1967), subject to reversal only for a manifest abuse of discretion.
See Watson v. State, 282 Md. 73, 84, 382 A.2d 574, 580, cert. denied,
437 U.S. 908 (1978); Smith v. State, 20 Md. App. 577, 585-86, 318
A.2d 568, 574-75 (1974), cert. denied, 420 U.S. 909 (1975).
At trial the jury also heard the conflicting testimony concerning the
treatment of the appellant by the police. We note that the appellant
does not, on appeal, challenge the voluntariness of his statements or
the adeqaucy of his waiver of his Miranda rights.
10a
tention that the police violated M.D.R. 723 by unneces-
sarily delaying his initial appearance before a judicial of-
ficer. Citing Johnson v. State, 282 Md. 314, 384 A.2d 709
(1978), he argues that the first statement should have been
suppressed because it was taken prior to his initial ap-
pearance and during a period of unnecessary delay.’ Ap-
pellant also urges us to rule that the second statement
should have been suppressed for two reasons: first, the ini-
tial appearance before Commissioner O’Brien was defec-
tive because the Commissioner did not read the complete
“advice of right to counsel” required by M.D.R. 723 (b);
second, the statement was “tainted by the previous illegal
detention,” and does, therefore, fall within the Johnson
exclusionary rule.
THE FIRST STATEMENT
In response to the appellant’s argument that the period
during which the first statement was taken constituted an
“unnecessary delay” in bringing the appellant before a
judicial officer, the State first urges us to conclude, as did
the trial judge, that the nine-hour delay was necessary
under the circumstances presented here. Appellee points
out that the appellant had to be transported to BCI from
his home in Rockville, processed, and then transported to
the Commissioner from BCI; but concedes that, at most,
‘It may seem anomalous that the appellant is seeking to exclude a
largely exculpatory statement. As we read the broad language of the
Johnson case, it applies to “any statement” given to the police in viola-
tion of M.D.R. 723 without regard to the statement’s content. /d. at
328, 384 A.2d at 717. We note, as did the Supreme Court that “no
distinction may be drawn between inculpatory statements and
statements alleged to be merely ‘exculpatory.’ If a statement made
were in fact truly exculpatory it would, of course, never be used by the
prosecution.” Miranda v. Arizona, 384 U.S. 436, 477 (1966), quoted
in Milhouse v. State, 31 Md. App. 571, 576, 358 A.2d 262, 265 (1976).
these events consumed a total of eighty minutes. Any con-
tention that a period of eighty minutes establishes a
necessity for a nine hour delay is patently without merit.
In Johnson, the Court of Appeals listed five examples
of necessary delay. Jd. at 329, 384 A.2d at 717. The ex-
amples were intended to be just that; they were not intend-
ed to be an entire litany of occurrences from which the
State is required to justify a delay in the initial appearance
of a defendant before a judicial officer. Lewis v. State,
285 Md. 705, 404 A.2d 1073 (1979).
M.D.R. 723, while allowing for necessary delays in
presenting a defendant before a judicial officer, does not
countenance a delay for the principal purpose of obtaining
a statement or a confession from the defendant. The
Maryland Rule has its antecedents in the federal McNabb-
Mallory Rule. McNabb v. United States, 318 U.S. 332
(1943); Mallory v. United States, 354 U.S. 449 (1957). In
the latter case the Court made it plain that “the delay must
not be of a nature to give opportunity for the extraction of
a confession.” Jd. at 455 (emphasis added); see also United
States v. Meachum, 197 F. Supp. 803 (D.D.C. 1961);
Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301
(1977), M.D.R. 723 is designed to insure that even a de-
fendant arrested pursuant to a warrant is promptly
brought before a neutral judicial authority who can for-
mally apprise the defendant of his rights and ascertain his
desires with regard to legal counsel.* See, e.g., Watson v.
We note that the Court of Appeals in Lewis found a six and one-
half hour delay to be necessary where its sole purpose was to
transcribe a confession given by the defendant prior to his arrest.
Lewis v. State, 285 Md. 705, 404 A.2d 1073 (1979). Of course, a to-
tally different situation is presented where, as in the instant case, the
arrest precedes any questioning leading to a statement or confession.
12a
States, 234 F.2d 42 (D.C. Cir. 1956) and 249 F.2d 106
D.C. Cir. 1957).
In the instant case, Mr. Meyer was arrested at 7:00 a.m.
and taken to BCI. He was informed of the existence of the
Lewis statement implicating him in the murders; he re-
quested to see the statement and then offered his own ver-
sion denying any involvement in the brutal stabbings. In
Commonwealth v. Abu-Ibn Hanifah Bey, 462 Pa. 533,
341 A.2d 907 (1975), the Pennsylvania Supreme Court
held that a delay for the purpose of confronting a de-
fendant with a statement implicating him in a robbery and
taking his statement thereafter is “unnecessary” under the
terms of a similar Pennsylvania rule. Here an obvious op-
portunity existed for the extraction of a confession after
the appellant’s arrest and prior to his initial appearance. It
was error to admit the first statement because it was ob-
tained in violation of M.D.R. 723.Johnson v. State, 282
Md. 314, 384 A.2d 709 (1978).
Upon our own independent review of the record,
however, we are convinced beyond a reasonable doubt
that the erroneous admission of the first statement in no
way influenced the jury’s verdict. The error is, therefore,
harmless and reversal of the conviction is not required.
Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678
(1976). See also Chapman v. California, 386 U.S. 18
(1967); Harrington v. California, 395 U.S. 250 (1969);
Fahy v. Connecticut, 375 U.S. 85 (1963). It is of no sig-
nificance that the error complained of is not of constitu-
tional dimension, for Maryland has but one harmless error
rule for criminal cases. Dorsey, id. at 657-59, 350 A.2d at
677-78.
l3a
In the erroneously admitted first statement, Mr. Meyer
vehemently denied any involvement in the murders; he did
accuse Lon Lewis of complicity in the crimes. He also ex-
panded somewhat on the information he had previously
supplied to the police concerning Mr. Lewis’ Texas girl-
friend.’ Mr. Meyer did admit visiting the Lewis home the
night before the murders, and he did admit owning a
cream-colored suit and a black briefcase. The major por-
tion of the first statement, however, was devoted to the
appellant’s denial of culpability in the crime.
The evidence in the case was overwhelming. The ap-
pellant’s confession detailing the manner of the stabbings
was, as we hold, infra, properly received into evidence.
Cf. Milton v. Wainright, 407 U.S. 371 (1972) (erroneous
admission of inculpatory statement was harmless in light
of other properly admitted confessions). An eyewitness
identified the appellant, both in and out of court, as the
person she saw appraoching the Lewis home shortly be-
fore the murders were committed. In addition, there was
independent evidence of the ownership of the briefcase: a
picture of the briefcase lying on the back seat of the ap-
pellant’s automobile was admitted along with the briefcase
itself. Other evidence clearly linked the appellant to the
crime: expert testimony concerning the nature of the
’The prior statement, taken two days before appellant’s arrest, was
admitted into evidence; the appellant does not, on appeal, challenge
its admission.
l4a
wounds on the victims’ bodies and the strength required to
inflict such wounds; and blood found on the appellant’s
shoes.
The facts contained in this first statement were either
cumulative of the other evidence or insignificant in light of
the other evidence. Moreover, the essence of the statement
was exculpatory. Its admission into evidence, while er-
roneous under M.D.R. 723 (a), was harmless error in this
case. See Bartram vy. State, 33 Md. App. 115, 152-56, 364
A.2d 1119, 1141-43 (1976), aff'd, 280 Md. 616, 374 A.2d
1144 (1977); Holloway v. State, 26 Md. App. 382, 395-96,
339 A.2d 319, 326-27 (1975)."*
THE SECOND STATEMENT
Appellant first asserts that Commissioner O’Brien failed
to give the appellant the full advice of right to counsel as
required by M.D.R. 723 (b) as set out in M.D.R. 711 (a).
This argument is based on the testimony of Commissioner
O’Brien at the pretrial suppression hearing and at trial
when he was asked to recite the advice given to the ap-
pellant; his testimony, while patterned on the Miranda
warnings, did not specifically track the language in
M.D.R. 711 (a).
* Because of our disposition of the issues under M.D.R. 723 we do
not consider the State’s argument that the Johnson case should be ap-
plied prospectively only. Accordingly, we express no view at this time
on the merits of the State’s argument. Cf. Shope v. State, 41 Md. App.
161, 396 A.2d 282 (1979). In Lewis v. State, 285 Md. 705, 404 A.2d
1073 (1979), the same argument was addressed to the Court of Ap-
peals but the Court in its disposition of the case found it unnecessary
to decide the question.
1Sa
We do not think that appellant’s argument can be sus-
tained. It overlooks the acknowledgments signed by both
the Commissioner and the appellant at the initial ap-
pearance. See n.3, supra. The “advice of right to counsel”
that appears on the charging document, which appellant
by his signature acknowledged reading and receiving, con-
forms with the requirements of M.D.R. 711 (a). In light of
its docunféntary evidence indicating compliance with
M.D.R. 723 (b), the appellant’s assertion premised on a
mere imprecision in the Commissioner’s testimony must
fail.
It is also argued by the appellant that the second state-
ment in which he confessed to the murders should have
been suppressed because of the preceding illegal detention
which violated M.D.R. 723 (a). Since we have found that
the appellant’s initial appearance before the Commissioner
was unnecesasrily delayed by the police, we must focus
upon the circumstances surrounding the second statement,
specifically to ascertain whether it was an “independent
act” and a product of “deliberate reflection.” Johnson vy.
State, 282 Md. 314, 330, 384 A.2d 709, 718 (1978).
A similar situation was presented in Johnson; the police
had taken two statements from the defendant, one prior to
his initial appearance and one following the appearance.
In ruling that the second statement should have been ex-
cluded, Judge Levin stated for the Court:
“Appellant’s second statement, admitting re-
sponsibility for the Rainbow Cleaners holdup
and shooting, which was given almost immedi-
ately upon appellant’s return from the commis-
sioner on January 31, should likewise have been
suppressed. We cannot say, on the record before
us, that the second confession was an inde-
pendent act, occurring after time for deliberate
l6a
reflection and therefore free from the taint of
the preceding illegal detention.”
Id. at 330, 384 A.2d at 718 (Emphasis added.)
In our judgment the State has met its burden of showing
in this case that the second confession was an independent
act and a product of deliberate reflection. Appellant’s first
statement was essentially exculpatory; he denied any in-
volvement in the murders. In Johnson, the defendant “all
but confessed” in the first statement, id. at 318, 384 A.2d
at 711; in the second statement he “confessed outright.”
Id. at 318, 384 A.2d at 712. Moreover, appellant here
completed his first statement at 3:45 p.m. He was then
driven to Upper Marlboro from BCI, presented before
Commissioner O’Brien, and transported back to BCI.
During the return trip, a stop was made in order to pur-
chase, at his request, a steak dinner.
Questioning by Corporal Morrissette did not begin until
after Mr. Meyer had finished his dinner at 6:00 p.m. —
almost two hours after his initial appearance before the
Commissioner. The questioning lasted for three hours;
there was a twenty-minute break, and then the written
second statement was prepared between 9:20 p.m. and
10:00 p.m. — a period of five hours after the appellant’s
initial appearance. Although the appellant signed the bot-
tom of each page of the second statement, when presented
with a written waiver of rights, he declined to sign that
paper, thus indicating that he was fully cognizant of his
actions at the time. We also note that Corporal Morris-
sette testified that he gave the appellant full Miranda
warnings at the start of the 6:00 p.m. interrogation session
and that the appellant orally agreed to waive those rights
and to proceed with the questioning.
17a
In evaluating the circumstances surrounding a confes-
sion which follows upon the heels of an illegal detention,
we do not apply a rigid talismanic test. See generally
United States v. Close, 349 F.2d 841, 851 (4th Cir. 1965),
cert. denied, 382 U.S. 992 (1966); Wilkins v. Maryland,
402 F. Supp. 76, 83 (D. Md. 1975), affd, 538 F.2d 327
(4th Cir. 1976), cert. denied, 429 U.S. 1044 (1977). In-
stead, we consider all of the circumstances surrounding
the confession, including the time, place, and manner of
its taking; intervening events; its content compared to
prior statements given by the appellant; and other factors
reflecting upon the appellant’s alleged free will in making
the statement. The list is not exclusive. Taking all of the
foregoing into consideration, we hold that the State
demonstrated that the second statement was a product of
the appellant’s free will divorced from the preceding illegal
detention. Judge Levin was correct in denying the motion
to suppress the second statement, when he said:
“The inculpatory statement that was taken from
the Defendant was taken subsequent to his being
taken before the commissioner, and after a time
for eating and a time for reflection, and a time
for deliberation. It is my judgment that the
Johnson v. State of Maryland case is distin-
guishable from the facts in this case. . . .”
On the day Carol and Heather Lewis were murdered,
12-year old Darlene Brown observed a man walking up the
driveway toward the front door of the Lewis home be-
tween 4:45-5:00 p.m. At that time Darlene was walking
down the driveway of her house across the street from the
Lewis home. That night after the murders had been
discovered, Darlene gave the police a written desription of
18a
the man she had seen earlier. Four days later she made
another written statement describing him. Both descrip-
tions indicated that the suspect was in his late twenties,
clean shaven, over six feet tall, and had blondish hair.
Darlene also told the police that he was wearing a light-
colored suit and that he was carrying a briefcase.
From this description, the police made a composite
drawing. Then, on October 8, 1977, the day of appellant’s
arrest, Corporal Morrissette brought six pictures to
Darlene’s home and asked her to look at the pictures to see
if she recognized the man she had seen on the Lewis drive-
way fifteen days earlier. After discarding a picture of
Detective Kowalski who had worked on the composite
drawing with her, she carefully considered the other five
photographs and picked out the appellant.
Appellant has continually argued that the photographic
array was impermissibly suggestive and would, therefore,
taint an in-court identification.®? The photographs are part
of the record and we have independently examined them
and the testimony concerning the conduct of the array.
Although the photographs were not absolutely uniform,
they were substantially similar. We are unable to find that
the photographic array, under “the totality of the cir-
cumstances surrounding it, was so unnecessarily sug-
gestive as to give rise to a very substantial likelihood of ir-
reparable misidentification. . . .” Smith and Samuels y.
State, 6 Md. App. 59, 67, 250 A.2d 285, 290 (1969), cert.
denied, 397 U.S. 1057 (1970). Indeed, the photographic
array shown to Darlene Brown does not have even thresh-
*The trial judge conducted suppression hearings both before trial
and during trial; he concluded that there was no primary illegality that
would taint the judicial identification of the appellant by Darlene
Brown. Cf. Green v. State, 281 Md. 483, 380 A.2d 43 (1977).
19a
old suggestiveness, and therefore, appellant has not car-
ried his initial burden requiring a response by the State.
Godwin v. State, 38 Md. App. 716, 727, 382 A.2d 596, 603
(1978). See McDowell v. State, 31 Md. App. 652, 663, 358
A.2d 624, 630 (1976); Martin v. State, 40 Md. App. 248,
255, 389 A.2d 1374, 1378 (1978).
At trial, but out of the presence of the jury, Darlene,
who had never been inside a courtroom before, took the
witness stand and was asked to make an in-court iden-
tification of the man she saw at the Lewis home. She stood
up and pointed to co-counsel David M. Martin, seated at
the counsel table with principal trial counsel, Joseph A.
DePaul. Appellant had been previously seated among the
courtroom spectators. After a bench conference during
which the State argued that the defense had engaged in
misleading tactics, the judge ordered the bailiff to bring in
the jury. However, before the bailiff could leave, Darlene
asked permission to try again because “I saw a couple of
people I didn’t see before.”
Over vigorous objections by the defense and after some
brief questioning by the court, all males in the courtroom
were ordered to stand, and Darlene was permitted to walk
around the courtroom eliminating the males one by one.
When a few men remained standing, she returned to the
stand and identified the appellant. She was then ques-
tioned by the court and denied receiving any assistance or
prompting. She attributed her need for a second oppor-
tunity to her failure to look closely, in the first instance, at
the men in the back of the courtroom.
Before the jury returned, appellant’s counsel produced
six witnesses who testified that Darlene appeared to have
had eye-contact with some spectators during the bench
conference that followed her erroneous first identifica-
20a
tion. None of these witnesses heard Darlene speak,
although one witness stated that she appeared to mouth
some words. After the testimony was concluded, the jury
returned and the court, over the appellant’s continuing ob-
jection, allowed Darlene to identify the appellant.
As we understand appellant’s argument, it is premised
upon an assumption that the judicial identification in the
jury’s presence was tainted at the hearing immediately
preceding it. During the direct, cross, redirect, and recross
examinations of the youthful witness, the circumstances of
both her pretrial photographic identification and her
judicial identification were brought out before the jury.
As Judge Moylan has stated for this Court:
“An in-court identification, as any other
evidence, civilly or criminally, may be tested and
probed by the traditional device for such testing
and probing — the use of cross-examination. . . .
What happens in the courtroom is open for judge
and jury to see and does not call for the Sixth
Amendment’s special ventilation of musty and
secret station house proceedings.”
Green v. State, 35 Md. App. 510, 521, 371 A.2d 1112,
1119, reversed on other grounds, 281 Md. 483, 380 A.2d
43 (1977). The examination by appellant’s counsel of the
witness in this case was rigorous and probing. The jury
became aware of the erroneous first identification made
out of their presence and could weigh that factor in assess-
ing Darlene’s credibility. Moreover, the court conscien-
tiously afforded the appellant an opportunity to challenge
Darlene’s judicial identification before it was revealed to
the jury. Upon our independent review of the record, we
find no error in allowing Darlene to identify the appellant.
2la
IV
Over defense objection, thirty-five pictures were in-
troduced into evidence. Appellant contends that because
“the photographs were unnecessary and prejudicial as
tending to inflame the passions of the jury,” the trial judge
abused his discretion in admitting them.
The admission of photographs is within the discretion
of the trial court, and its determination will not be dis-
turbed on appeal unless it clearly abused its discretion in
admitting them. Carroll v. State, 11 Md. App. 412,
414-15, 274 A.2d 677, 678-79 (1971). See Rasnick v. State,
7 Md. App. 564, 569-70, 256 A.2d 543, 546 (1969), cert.
denied, 400 U.S. 835 (1970); McLaughlin v. State, 3 Md.
App. 515, 523, 240 A.2d 298, 303 (1967); See also Clarke
v. State, 238 Md. 11, 207 A.2d 456 (1965).
Appellant has failed in his brief to indicate the nature of
the prejudice claimed as to thirty-one of the thirty-five
photoographs.'® We are unable to find any error by the
trial court in admitting the thirty-one photographs.
Of the remaining four photographs, two showed the
bodies in the positions in which they were originally found
and two were autopsy photographs showing the multiple
stab wounds. Originally, the State attempted to introduce
thirteen photographs showing the bodies at the crime
scene and prior to the autopsy. The record demonstrates
that Judge Levin assiduously evaluated each of the thir-
teen photographs, selecting four that he thought were ap-
propriate. No abuse of discretion is disclosed by the
record, and appellant’s contentions to the contrary must
fail.
'°These were pictures of the crime scene, the appellant’s
automobile, and the appellant. The victims’ bodies were not fully visi-
ble in any of the crime scene photographs.
22a
Vv
The reports of the autopsies performed on the victims
and received in evidence contained identical statements
that: “The manner of death is homicide.” Appellant
sought to strike those statements at trial prior to the
reports being received, and now urges the same point as a
basis for a reversal of his convictions on appeal. We find
no error.
Appellant’s reliance on Benjamin v. Woodring, 268 Md.
593, 303 A.2d 779 (1973) is misplaced. In that civil case,
the decedent’s death was caused by an overdose of bar-
biturates; the medical examiner’s conclusion of suicide was
based on facts extrinsic to the autopsy supplied by Mrs.
Benjamin, the plaintiff. Moreover, the manner of death
was central to the dispute between the parties.
The medical examiner’s conclusion in the instant case
that the deaths of Carol and Heather Lewis were
homicidal was a product of the autopsy examinations
themselves without the need for extrinsic evidence. Ob-
viously, the multiple stab wounds inflicted upon both
bodies were not accidental, natural, or suicidal; they were,
therefore, homicidal. Moreover, the autopsy statements
were perfectly consistent with the appellant’s defense. In
his opening statement, appellant’s counsel argued: “There
is no question that Mrs. Lewis and Heather Lewis were
brutally slain that day in Bowie. There isn’t any dispute
over that. Indeed, we readily concede that.” This position
was reiterated in the closing argument when appellant’s
counsel informed the jury that Mr. Meyer “is not telling
you to disregard the fact that poor Mrs. Lewis and her
daughter were killed.”
Since the manner of death was undisputed, leaving ap-
pellant’s criminal agency as the primary issue, we think the
23a
case fits squarely within our prior decision in Malekar v.
State, 26 Md. App. 498, 338 A.2d 328 (1978). What Judge
Moylan said there, applies with equal force here:
“The conclusion that the cause of death here was
homicidal, stemming from the obvious physical
fact of strangulation, was not a product of in-
vestigative activity on the part of the Medical Ex-
aminer’s Office but was a direct product of the
autopsy examination itself. The conclusion,
moreover, was completely consonant with the
appellant’s theory of the case, since his version of
the fatal incident had been that two robbers burst
into the home and killed his employer. We see
neither error nor prejudice.”
Id. at 510, 338 A.2d 344-35. Similarly, in this case we see
no error and it is obvious that appellant has suffered no
prejudice.
VI
Appeliant objects to the seizure by Prince George’s
County Police of his 1974 Maverick parked in his mother-
in-law’s driveway in Arlington, Virginia. Specifically, he
contends that “the initial warrantless seizure of the car in
Virginia was illegal, and tainted the subsequent search
pursuant to the warrant in Prince George’s County.” The
record unequivocally demonstrates that the police ob-
tained the express permission of Hortensia Meyer, ap-
pellant’s wife, for the seizure of the automobile. It is un-
controverted that Mrs. Meyer was a co-owner of the auto-
mobile. As such, she had the authority to consent to her
automobile being towed from Virginia to Maryland. Ap-
pellant’s objection to the seizure is without merit. Wade v.
Warden, 278 F. Supp. 904 (D. Md. 1968); United States v.
Carter, 569 F.2d 801 (4th Cir. 1977), cert. denied, 435
U.S. 973 (1978).
24a
Vil
During the early stages of the trial, the State attempted
to introduce the search warrants, applications therefor,
and supporting affidavits that had been obtained for the
search of appellant’s apartment and automobile. Con-
tained within the applications was the confession of Lon
Lewis that incriminated the appellant. In proffering the
materials, the State indicated that it wanted to “show this
jury that the police didn’t go like storm troopers into that
home.” Appellant objected to the introduction of the
materials. The court agreed with appellant and refused to
admit them; however, as a compromise it instructed the
jury:
“All right, ladies and gentlemen of the jury,
there were two exhibits, 44 and 45. One is a
search warrant for a car. And the other warrant
is a search warrant for a premises. I am not going
to admit these search warrants, but I instruct you
that these search warrants were issued by two
separate judges and signed by them to be issued.
And they were executed.
And I further instruct you that no search war-
rant is issued by a judge, either here or in Mont-
gomery County, and this is applicable to both of
these search warrants, that they are only issued
based upon probable cause.”
It is the appellant’s contention that the instruction was
improper “[e]specially since the technical concept of
‘probble cause’ was not explained to the jury ... .” He
claims that the jury could have been misled to his pre-
judice into believing that the issuance of the search war-
rants was evidence of his guilt.
We believe that it would have been preferable for the
trial court to have omitted any reference to probable cause
25a
or, once having made such a reference, to have explained
its technical meaning to the jury. Nevertheless, we do not
find that the instruction as given constitutes error. The
authority cited by appellant, Dempsey v. State, 277 Md.
134, 355 A.2d 455 (1976), is inapposite. There the court in-
formed the jury of the court’s finding that a confession
was voluntary, an issue which the jury had the duty
ultimaiely to decide for itself. Here the instruction, com-
ing early in the trial, in no way usurped or interfered with
the jury’s role. Furthermore, there was extensive prior
testimony, to which no objection was made, that both
warrants had been “approved” by a judge. We find no pre-
judice.
Judgments affirmed; costs to
be paid by appellant.
26a
APPENDIX D
IN THE CIRCUIT COURT
OF PRINCE GEORGE’S COUNTY
GENE THOMAS MEYER,
Petitioner
vs. : Petition
Docket No.__
STATE OF MARYLAND
Respondent
PETITION FOR POST CONVICTION REVIEW
Comes now, the Peititioner, Gene T. Meyer, by and
through his attorneys, JOHN T. BELL, and the law firm
of BELL, CORNELIUS & SHORE, pursuant to Article
27, Section 645, Maryland Code, and Rule BK41, Mary-
land Rules of Procedure, and respectfully represents to
this Honorable Court as follows:
1. That the Petitioner is currently held in the Patuxent
Institution at Jessup, Maryland under the jurisdiction of
the Maryland Department of Corrections.
2. That the Petitioner is currently serving consecutive
sentences of life imprisonment and thirty (30) years as
ordered on June 6, 1978, in the Circuit Court of Prince
George’s County, Maryland, under the conviction for
murder in Criminal No. 18 621 of which this Petition con-
cerns.
3. That Petitioner appealed this conviction to the Court
of Special Appeals averring that his self incriminatory
statements introduced at trial were inadmissible because
his delay in presentment before a District Commissioner
violated M.D.R. 723, and that the State’s identification
procedure was impermissibly tainted. Petitioner’s convic-
27a
tion was affirmed on October 9, 1979, and Writ of Cer-
tiorari denied by the Court of Appeals on December 20,
1979.
4. Petitioner additionally is serving sentences unrelated
to the convictdion and sentence of June 6, 1978.
The Petitioner respectfully bases his petition for relief
on the following grounds:
1. The Petitioner was arrested on October 8, 1977, and
held approximately fifteen hours before he was trans-
ferred to the County Detention Center. Most of this time
was devoted to obtaining two (2) statements from the Peti-
tioner. The Petitioner was not given a copy, as required.
of either his arrest warrant prior to his interrogation or the
search warrant for his apartment, though both were al-
ready prepared. Plaintiff claims that his Miranda warn-
ings were never read to him before or during his interroga-
tion.
2. During the fifteen (15) hours of detention by the
Prince George’s County Detectives, the Petitioner made
two (2) statements which served as the essential basis of
the State’s case against him. Petitioner claims these
statements were made involuntarily.
3. The Petitioner was taken before a District Commis-
sioner to be charged as required, only after a delay in ex-
cess of nine (9) hours. The Petitioner made his first state-
ment after interrogation conducted during this delay. Peti-
tioner claims that he was not fully apprised by the Com-
missioner during their ten (10) minutes meeting of his
rights or the nature of the doucments that the Petitioner
then signed.
4. The District Commissioner ordered the Petitioner
transfered to the County Detention Center, yet the Peti-
28a
tioner was instead returned to the custody of the Prince
George’s Detectives for the express purpose of interroga-
tion, interrogation which lasted into the night.
5. The Petitioner claims that he was repeatedly denied
access to a phone and counsel throughout oe day. Both
the Petitioner’s wife and an attorney acting on their behalf
were refused access to Petitioner on a number of occasions
during his day-long interrogation.
6. During the April, 1978, trial for Criminal No. 18621,
Petitioner was not included in crucial bench conferences.
The exclusion from such was prejudicial to his interests.
7. The Petitioner claims that his public attorney did not
vigorously press his cause following conviction, and ig-
nored his express desire not to waive a number of issues on
appeal.
WHEREAS and because of the aforegoing, the Peti-
tioner respectfully offers to this Honorable Court the
following contentions:
I. That the Petitioner was denied his right to Protection
against self incrimination as guaranteed by the Fifth and
Fourteenth Amendment of the United States Constitution,
and Article 23 of the Maryland Declaration of Rights, by
the use of the two statements taken during interrogation
against him.
II. That the Petitioner was denied his rights to
assistance of counsel as guaranteed by the Sixth and Four-
teenth Amenmdments of the United States Constitution
and Article 21 of the Maryland Declaration of Rights, dur-
ing the unreasonably long and unlawful detention for pur-
poses of interrogation.
29a
III. That Petitioner was denied his right to a timely
copy of the arrest warrant as guaranteed by Maryland law.
IV. That Petitioner was denied his right to be present at
all stages of his trial as guaranteed by Maryland law.
V. That Petitioner did not waive any right to appeal the
issues Of this petition because of inadequate representation
by the Public Defender in the appeal of his Circuit Court
conviction.
WHEREFORE, the Petitioner respectfully prays that
this Honorable Court grant such relief as follows:
1. An evidentiary hearing to prove Petitioner’s conten-
tions, I - V.
2. A new trial if such contentions are proved, so as to
prevent injustice.
3. For such other and further relief as the nature of this
cause may require.
BELL, CORNELIUS & SHORE
BY:
JOHN T. BELL
101 West Jefferson Street
Rockville, Maryland 20850
762-1717
Attorney for Petitioner
BY:
ELBERT R. SHORE
101 West Jefferson Street
Rockville, Maryland 20850
762-1717
Attorney for Petitioner
30a
APPENDIX E
IN THE CIRCUIT COURT FOR PRINCE GEORGE’S
COUNTY, MARYLAND
GENE THOMAS MEYER
Petitioner
vs, : LAW NO. 95079
STATE OF MARYLAND : (Criminal Nos.
Respondent : 18621-18623
VERIFICATION OF PETITION FOR
POST CONVICTION RELIEF
I CERTIFY on this 21st day of March, 1983, that I am
competent to be witness and have personal knowledge of
the facts set forth herein.
1. On October 8, 1977, officer Hatfield of the Prince
George’s County Police came to may apartment in
Rockville and placed me under arrest. I was taken im-
mediately to a waiting police cruiser. | was not given a
copy of the arrest warrant or a copy of a search warrant
for my apartment. This occurred at 7:30 a.m. I requested
my wife to get an attorney for mer.
2. I was immediately taken to the Prince George’s
Bureau of Criminal Investigations (BCI) in Forestville,
Maryland and placed in an interrogation room. I spend
about 15 hours at BCI that day, mostly under interroga-
tion and made two statements.
3. While there, neither Hatfield nor any other officer
ever informed me of my constitutional rights either
before, during or after the giving of the first statement.
3la
My repeated requests for an attorney were repeatedly
refused. Although! signed two statements that day and
evening, I signed no waiver form.
4. At 4:00 p.m. I was taken to Upper Marlboro and for-
mally charged by a district commissioner. I had been
photographed previously. While there, I was “booked”, or
processed. Prior to being present before the district com-
missioner, I had signed a first statement written by Hat-
field between 11:00 a.m. and 4:00 p.m.
5. I was before the district commissioner for a brief
time not exceeding 10 minutes. At no time while there, did
I sign a formal waiver of rights.
6. After this, I was returned to BCI for further inter-
rogation by Morrissette. Again, I was never informed of
my Miranda rights. I was not given dinner until close to
10:00 o’clock.
7. I was questioned continuously by Morrissette until
9:00 p.m. At that time, Morrissette recessed to prepare a
written statement. Morrissette had indicated that he could
make it easy on my if I would confess. Morrissette took a
statement from me in question and answer format from
9:20 p.m until 10:00 p.m. After Morrissette finished typ-
ing the statement, he submitted a written waiver of rights
to me to sign. I refused. I did, however, sign each of the
pages of the typed statement. Then I was taken to the
county jail.
8. When contacted by Geraldine Sweeney about the
preparation of the appeal for my conviction, I had in-
structed her to raise the issues of the prevention by the
police of my attorney’s repeated efforts to see me during
interrogation and the involuntariness of my statements
under Miranda. I received in the mail a final filed brief on
32a
November 10, 1978.1 was surprised when I read the ap-
pellate opinion to see that it stated that the Miranda issue
was not raised, and to see that the issue of my denial of
counsel during interrogation was not raised. I wrote her a
letter dated November 6, 1979 in this subject. However, |
received a letter from her on November 9, 1979 stating
that the public defender’s office had chosen not to raise
these issues on appeal because they were credibility issues
that were not winable.
9. After instructions I was not brought forward to par-
ticipate during a bench conference between the judge, pro-
secutor and my defense attorney pertaining to a note
received from the jury requesting written copies of the
testimony, Rule 723 and thie laws cited by the attorneys. I
did not waive my right to be present when the judge decid-
ed to refuse the jury’s request. (p.810) Had I known I had
a right to be there I would have so requested.
I DO SOLEMNLY DECLARE AND AFFIRM under
the penalties of perjury that the contents of the aforegoing
Verification are true and correct.
Verification are true and correct.
33a
APPENDIX F
IN THE CIRCUIT COURT
OF PRINCE GEORGE’S COUNTY
GENE THOMAS MEYER,
Petitioner
Petition Docket
VS, ; No.
STATE OF MARYLAND
Respondent
STATEMENT OF FACTS
On September 23, 1977, Carol Ann Lewis and her baby
daughter, Heather, were stabbed to death in their home, in
Bowie, Maryland. Carol’s husband, Lon Lewis, discov-
ered the bodies at approximately 6:45 p.m. The Prince
George’s County Police responded to the home, photo-
graphed the scene, and collected evidence. Mr. Lewis was
subsequently questioned at times over the next two weeks
until on October 7, 1977, when he confessed to conspiring
with his co-worker, Gene T. Meyer, to murder their wives.
With Meyer thus implicated, the police drew up a warrant
for Meyer’s arrest for the murder of Carol and Heather
Lewis, attaching to it a copy of the Lewis confession.
On October 8, 1977, a Montgomery County Judge
issued the warrant for Meyer’s arrest. Officer Hatfield of
the Prince George’s (P.G.) County police immediately
went to Meyer’s apartment in Rockville, roused Meyer
from bed, placed him under arresi at approximatly 7:30
a.m., and immediately took him out to a waiting police
cruiser. Meyer was not given a copy of his arrest warrant,
nor was a copy of the search warrant for his apartment
given to either Meyer or his wife. The P.G. police escorted
34a
Mr. Meyer immediately after the arrest to police head-
quarters for purposes of taking a statement. The Meyers’
apartment was searched for evidence soon after their
departure. The police left a copy of the search warrant on
the table of the apartment.
Meyer was taken to the Prince George’s Bureau of
Criminal Investigations (BCI) in Forestville, Maryland
and placed in an interrogation room. He spent approx-
imately 15 hours at B.C.I. that day, mostly under inter-
rogation, and made two (2) statements. Testimony at
Meyer’s subsequent murder trial conflicted as to the extent
of questioning and discussion which transpired during the
ride from Rockville to Forestville. Officer Hatfield claim-
ed that he placed Meyer immediatley in the B.C.I. inter-
rogation room because of Meyer’s request to read Lewis’
confession. Hatfield produced the Lewis statement and
read it to Meyer, repeatedly interjecting questions as they
progressed through the text. At the conclusion, Hatfield
testified that Meyer requested to “tell his side” and, conse-
quently, Hatfield took a statement from Myer.
This statement generally denied any involvement with
the killings, though Meyer did admit to knowing that
Lewis wanted to “get rid” of his wife, and to being at the
Lewis home on the evening of September 22, 1977, and to
owning a light colored suit and dark briefcase at that time.
These admissions, together with the statement as a whole,
were later used in the State’s case against Meyer. Meyer
testified that neither Hatfield nor any other officer ever in-
formed Meyer of his constitutional rights before or during
the taking of the first statement, and in fact repeatedly
refused his requests for an attorney. Hatfield testified,
however, that he read Meyer his Miranda rights off a card
both in the cruiser outside Meyer’s apartment and in the
35a
interrogation room prior to taking the first statement. He
further claimed that Meyer at no time requested to see an
attorney or make a phone call. There was, however, no
corroborating testimony to support Hatfield’s claim that
he read Meyer hsi rights, as in each instance cited, Myer
and Hatfield were alone. While Meyer signed each page of
the statements taken both that morning and evening, no
waiver form was ever signed by Meyer.
Meyer was held at B.C.I. from his arrest at 7:00 a.m.
until approximately 4:00 p.m., at which time he was taken
to Upper Marlboro to be formally charged by a District
Commissioner. Prior to this time, however, Meyer was
photographed for the purpose of compiling a “photo-
spread” for identification by the sole eye-witness, Darlene
Brown. He was also formally processed (i.e. fingerprinted,
etc.) sometime close to 4:00 p.m. The actual dictation of
the first staternent, written by Hatfield, took place be-
tween approximately 11:00 a.m. and 4:00 p.m.
At 4:00 p.m., the police took Meyer before District
Commissioner O’Brien for a brief time not exceeding ten
minutes. O’Brien testified that he read Meyer the charges,
informed him of his right to counsel, and advised him as
to the availability of the Public Defender. Meyer signed an
initial appearance report which advised Meyer of his
Court date and bond status, and signed a form requesting
a preliminary hearing. At no time during appearance did
Meyer sign a formal waiver of his rights. O’Brien signed
these two documents and a third committing Meyer to the
custody of the Sheriff and the County jail.
Meyer was thereupon taken back to B.C.1., following a
short detour to purchase a dinner for him. Meyer claims
he was not given this dinner until close to 10:00 p.m. Cor-
poral Morrissette, the officer who interrogated Meyer in
36a
the evening, testified that Meyer ate his dinner upon his
returrn to B.C.I. at approximately 4:30 p.m. In any event,
Meyer was placed in an interrogation room at B.C.I. and
Morrissette began to question him. Morrissette testified
that he read Meyer his Miranda rights, but again Meyer
denies ever being so informed. As with Hatfield, there is
no corroborating testimony for Morrissette’s account.
Morrissette continued questioning Meyer until ap-
proximately 9:00 p.m. at which time Morrissette recessed
in preparation for recording Meyer’s statement. Meyer
claims that Morrissette intimated that he could somehow
“make it easy” on Meyer if he confessed. Morrissette
denies this as he denies ever alluding generally to the pro-
bability that if Meyer didn’t confess “they would drop the
pill” on him in prison (evidently a reference to some
unspecified threat of death). Morrissette typed a statement
from Meyer in a question and answer format from 9:20
p.m. until approximately 10:00 p.m. Although this state-
ment generally acknowledged guilt in the slaying of Carol
Lewis, Meyer denied stabbing Heather and answered
many questions with “I don’t know” replies.
After Morrissette had finished typing the statement, he
submitted a written waiver of rights for Meyer to sign,
which Meyer refused. Morrissette then consulted with a
superior, Lieutenant Crump, who instructed Morrissette
to add the question, “Were you advised of your constitu-
tional rights by the District Court Commissioner?”, to
which Meyer replied that he didn’t remember. Meyer did
sign each of the pages of the typed statement. Following
completion of the statement, and Meyer’s refusal to sign
the written waiver, Meyer was finally taken to the county
jail.
37a
During the latter half of the day, Mrs. Meyer, accom-
panied by Mrs. Meyer’s mother and two friends, Mr. and
Mrs. Lash, waited vainly for a number of hours to see
Meyer. Police at B.C.I. told Mrs. Meyer that she could
neither see her husband that day, nor get a lawyer for him,
as Meyer had to request one himself. Later an attorney,
David Martin, was instructed by a partner in his firm on
behalf of Mrs. Meyer to contact Meyer as soon as possi-
ble. Martin testified to the events of that day as follows:
Martin first called B.C.I. around 6:30 p.m. to speak with
Meyer and identified himself as Meyer’s attorney. He was
told then that Meyer was eating dinner and couldn’t speak
to him. When Martin tried again at 7:00 p.m., he was told
that Meyer had been transferred to the Prince George’s
County Detention Center. Martin proceeded to the Coun-
ty Detention Center in Upper Marlboro, only to find that
Meyer was, in fact, still at B.C.1. When Martin arrived at
B.C.I. at approximately 8:30 p.m., he was told by an of-
ficer that Meyer had “just left” for the County Detention
Center. Martin returned to the County Detention Center
and determined after a half hour search that Meyer was
not there. Another call to B.C.I. sometime close to 10:00
p.m. was placed, and Martin was again told Meyer was on
his way. This time Meyer did arrive sometime past 10:30
p.m. at the County Detention Center and was then able to
meet with Martin.
In the pre-trial suppression hearings, Officer Gale tes-
tified that he had spoken with Marti that evening, but
claimed that it could not have been before 10:00 p.m., as
he testified that he was in Baltimore with two managers
from Data-Point, Meyer’s employer, until that time. Other
testimony revealed, however, that Gale and the two Data-
Point personnel had, in fact, returned before 8:30 p.m.
Two statements that were taken from the Data-employees
38a
that evening were recorded at 8:30 p.m., and Gale testified
that he had driven those two back from Baltimore. Mean-
while on October 7, 1977, Prince George’s police searched
Meyer’s apartment during which they seized a pair of
Meyer’s shoes later introduced into evidence, and located
Meyer’s car at his mother’s home in Northern Virginia.
The car was towed to a Prince George’s police station, and
searched, at which time the police removed a black brief-
case which was subsequently introduced as evidence.
Later the police visited the home of the twelve (12) year
old eyewitness, Darlene Brown, to show her a photo-
spread compiled and determine if she could identify Meyer
as the man she had reported seeing in front of the Lewis’
home the day of the murders. Brown picked out Meyer
from the collection of six photographs. At trial Meyer
strongly protested Brown’s identification as impermissibly
suggestive. Meyer contended that since her sighting had
been made at a distance of approximately 100 yards, she
was prone to remember only the most distinctive features,
such as his unusual height and hair style. In the photo-
spread Meyer was clearly the tallest and the only to have
hair over his ears (all other five photos were of Prince
George’s detectives).
39a
At his trial in April of 1978, Meyer’s salient defense
centered on the contention that his statements were made
involuntarily, which therefore made them inadmissible as
the tainted product of illegal detention, and denial of his
Miranda rights. Meyei relied on Maryland District Rule
723 to assert that the police were required to bring him
before a District Commissioner for formal charging “with-
out unnecessary delay.” The delay of nine (9) hours,
Meyer contended, was illegal and thereby tainted both
statements taken that day, citing as support the recent
decision in Johnson vy. State 282 Md 314 (1978). Meyer ad-
ditionally contended that both the in-court and out-of-
court identification of Meyer by Darlene Brown was im-
permissibly suggestive and therefore inadmissible. Meyer
lost on all fronts and was convicted for first degree murder
of Carol Lewis and second degree murder of the daughter,
Heather. He received consecutive sentences of life im-
prisonment and thirty (30) years respectively.
On appeal, Meyer’s case was handled by the Public
Defender’s Office. The issues of the voluntariness of
Meyer’s statements and the denial of counsel during inter-
rogation were not pressed. The Public Defender appealed
mainly on the basis of Maryland District Rule 723, and
Johnson, together with the question of the admissibility of
Brown’s identification of Meyer. The Court of Special Ap-
peals noted in footnote four (4) of its opinion that “At the
trial, the jury also heard the conflicting testimony
concerning the treatment of the appellate by the police.
We note that the appellate does not, on appeal, challenge
the voluntariness of his statements or the adequacy of his
waiver of his Miranda rights” Meyer v. State 43 Md App
427 (1979). Meyer had, in fact, directed his public attorney
to press the issue of the prevention by the police of his
attorney’s repeated efforts to see him during his inter-
40a
rogation (see Meyer letter to Geraldine Sweeney dated
11/6/82) on appeal, but was informed by letter (see
Sweeney letter to Meyer dated 11/9/82) that the Public
Defender’s office had chosen to drop the issue on appeal,
viewing it as an unwinable or “credibility” issue. The
Court of Special Appeals affirmed Meyer’s conviction in
Meyer v. State 43 MdApp 427 (1979), finding that while
the.nine hour delay was “unnecessary” and improper, the
first statement was admissible as basically exculpatory and
“harmless.” The second statement was also ruled admissi-
ble by the Court as the product of deliberate reflection and
independent decision. None of the questions concerning
voluntariness, Miranda rights, or denial of counsel were
addressed. The Court of Appeals denied to issue a writ of
certiorari in 286 Md. 750, as did the U.S. Supreme Court
in 446 U.S. 938.
BELL, CORNELIUS & SHORE
BY:
JOHN T. BELL
101 West Jefferson Street
Rockville, Maryland
762-1717
Attorney for Petitioner
BY:
ELBERT R. SHORE
101 West Jefferson Street
Rockville, Maryland 20850
762-1717
Attorney for Petitioner
4la
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this_____ day of Oc-
tober, 1982, I mailed postage prepaid a copy of the
aforegoing Statement of Facts to the Office of the State’s
Attorney, Prince Georges County, Maryland.
JOHN T. BELL
42a
APPENDIX G
IN THE CIRCUIT COURT
OF PRINCE GEORGE’S COUNTY
GENE THOMAS MEYER,
Petitioner
Petition Docket
vs. : No.
STATE OF MARYLAND
Respondent
MEMORANDUM OF LAW
I. MEYER’S STATEMENTS WERE MADE INVOL-
UNTARILY AND IN DEROGATION OF HIS CON-
STITUTIONAL RIGHTS AND WERE THEREFORE
INADMISSIBLE AS THE TAINTED PRODUCT
OF POLICE COERCION.
It is well established that an accused held by the police
for interrogation has a right against self incrimination
guaranteed by the Fifth and Fourteenth Amendments as
well as Article 23 of the Maryland Declaration of Rights.
In order for Mr. Meyer’s conviction to stand, the State
must have established that Meyer made his two statements
voluntarily, free of inducemnt or coercion, having know-
ingly and intelligently waived his right to remain silent.
Miranda v. State of Arizona, 384 U.S. 436 (1966); Mallory
v. Hogan 378 U.S. 1 (1964); State v. Kidd 281 M.D. 32
(1977). The State must have demonstrated that the waiver
of rights resulted from the defendant’s free will; a
presumption of waiver from mere silence on the part of
the accused following Miranda warnings or from the fact
that a statement was in fact obtained is not permissible.
Myers v. State 3 M.D. App. 534 (1978). The State’s case
43a
against Mr. Meyer rests almost entirely on the two state-
ments obtained on October 8, 1977, supported only by an
uncertain identification made by twelve (12) year old
Darlene Brown. Absent a showing that Meyer’s conviction
was founded on two voluntary statements, no other in-
dependent basis for his conviction exists. Petitioner main-
tains that the State has not carried this burden of proof
with regard to establishing the voluntariness of the
statements and now seeks review of his conviction in light
of the failure of his previous counsel to raise this issue.
In assessing the voluntariness of an accused’s statement,
the Court should consider the totality of circumstances, as
no one single factor is determinative. Hadder v. State 238
M.D. 341 (1965). Consideration of these circumstances
should focus on determining whether the statements were
made knowingly and voluntarily, and were the product of
rational intellect and free, uncoerced will Lynumm vy.
State 372 U.S. 528 (1963). In Mr. Meyer’s case, considera-
tion of any single instance of police conduct may not in
itself appear to justify the conclusion that Meyer’s
statements were involuntary. Yet the entire sequence of
events that transpired on October 8, 1977, taken as a
totality, evidences a disturbing pattern of police coercion
directed at extracting a confession from Mr. Meyer.
From the moment Mr. Meyer was first arrested on Oc-
tober 8, 1977, he was continuously held in a position of
helplessness and isolation. Detective Hatfield did not serve
Meyer with a copy of his arrest warrant, either upon arerst
or anytime thereafter, despite the requirements of Mary-
land District Rule 720 (f) and Rule 720 (e), Maryland
Rules of Procedure. These rules provide that the accused is
to be served a copy of the warrant “as soon as possible
after the arrest”, Maryland District Rule 720 (f). These
44a
Rules “are not guides to the practice of law but precise
rubrics “established to promote the orderly and efficient
administration of justice and (they) are to be read and
followed”. Brown v. Fraley, 222 M.D. 480, 483 161 A2d
128 1960 Countess v. State 280 M.D. 444, 463 (1979).
If Meyer had been given a copy of his warrant, he could
have learned the nature of the State’s case against him
without depending on the police. Officer Hatfield made
much of Lon Lewis’ confession in his initial exchanges
with Meyer, and offered to read the confession through
with Meyer soon after Meyer’s arrest. Yet Meyer need not
have depended on Hatfield to provide the statement if he
had been served a copy of his wararnt, attached to which
was a copy of the Lewis confession. Hatfield, however,
used the Lewis confession as a means of inducing Meyer to
make incriminating statements. Hatfield teestified that he
took Meyer immediately to an interrogation room at
B.C.I. to read through Lewis’ confession with Meyer,
allegedly on Meyer’s request. The entire environment,
however, was fashioned to create a psychological depen-
dence in Meyer directed at inducing him to make a confes-
sion. According to his own testimony, Hatfield repeatedly
interjected questions during his reading of the Lewis con-
fession. This situation was certainly the “functional
equivalent” of an interrogation, during which the accused
is entitled to the protection of his constitutional rights
against coercive police practices, no matter how veiled,
Rhode Island v. Innis 100 S.Ct. 1682 (1980); Brewer v.
Williams 430 U.S. 387 (1977).
Mr. Meyer was held in interrogation with only brief in-
terruptions for approximately nine hours before he was
taken before a District Commissioner for formal charging,
as required by Maryland District Rule 723. The language
45a
of this provision, however, clearly demands that the accus-
ed be so charged before a judicial officer “without un-
necessary delay”. The Court of Special Appeals held in its
decision in Meyer v. State, 43 M.D. App 427 (1979), that
the delay in this case did indeed constitute an “unnecessary
delay” and it was therefore error to admit the first state-
ment because it was obtained in violation of Maryland
District Rule 723. See also Johnson v. State, 282 M.D. 341
(1978). The admission of the statement made by Meyer
during that morning’s interrogation was not held not to
constitute error only because its admission was held
“harmless”. Yet the Court, in emphasizing the first state-
ment’s largely exculpatory character, ignores the holding
in Miranda v. State of Arizona 384 U.S. 436 (1966),
followed in Maryland cases, that for purposes of ad-
missibility, no distinction may be drawn between in-
culpatory statements and ones allegedly exculpatorey.
Law v. State, 21 M.D. App 12, aff. after remand 29 M.D.
App 457 (1974).
The Court of Special Appeals stated that their second
statement provided a sufficient basis for concluding that
the evidence against Mr. Meyer was “overhwelming”,
which thus made the admission of the first statement
harmless. Such evidence as “expert testimony concerning
the nature of the wounds on the victims’ bodies and the
strength required to inflict such wounds” was cited to rein-
force the Court’s position that the evidence against Meyer
was “overwhelming”. This approach is akin to placing the
cart before the horse, in that the Court uses the later state-
ment to justify the admission of the earlier one, even
though his day-long interrogation, including the earlier
statement was an important and crucial factor in his mak-
ing that second statement. It is established that even if the
truth of a confession is shown independently, the confes-
46a
sion is inadmissible if it was obtained in violation of the
defendant’s rights, Blackburn v. Copinger 300 F Supp
1127 (4th, 1969); Law v. State 21 M.D. App 12, aff. after
remand 29 M.D. App 457 (1974). In a similar way, admis-
sion of the earlier statement cannot be justified by the
Court’s belief that Meyer’s guilt was established outside of
the morning statement. Admitting the earlier statement on
the strength of the later statement ignores the central ques-
tion of the voluntariness of either and overlooks the im-
portance of the morning’s events in the daylong pattern of
coercion.
The Court of Special Appeals based its decision to af-
firm the admission of Meyer’s evening statement on its in-
terpretation of Maryland District Rule 723 and Johnson v.
State 282 MN.D. 314 (1978). The evening statement was
held admissible as the product of an “independent act” and
“deliberate reflection” and thus not tainted by the earlier
violation of Maryland District Rule 723 and improper in-
terrogation. Again, the crucial issue for the present centers
on the voluntariness of the evening statement and Meyer’s
alleged waiver of rights. The State was never required to
carry the burden of showing that Meyer’s alleged waiver of
rights was indeed voluntary.
It is well established that a heavy burden rests on the
State to demonstrate that a defendant held incommuni-
cado for a period of interrogation waived his privilege
against self-incrimination, knowing and intelligently State
v. Kidd 281 M.D. 32 Cert. den 434 U.S. 1002, Hale v.
State 5 M.D. APp 326 (1968). The State must show that
the statements used against Meyer were obtained in con-
formance with the dictates of the Supreme Court’s Miran-
da decision, and were made voluntarily. As the Supreme
Court held in Miranda 384 U.S. at 476, “whatever the
47a
testimony of the authorities as to the waiver of rights by
the accused, the fact of the length interrogation or incom-
municado incarceration before a statement is made is
strong evidence that the accused did not voluntarily waive
his rights.” The Supreme Court has further made clear
that “a valid waiver will not be presumed simply from the
silence of the accused after warnings are given or simply
from the fact that the confession was in fact eventually ob-
tained” Miranda 384 U.S. at 475. See Carnley v. Cochran
369 U.S. 506, (presumption of waiver from silent record
impermissible; record must show, or evidence exist, that
waiver was intelligent and knowing”). Mr. Meyer was held
incommunicado throughout the day, and the only evi-
dence the State could offer to establish any voluntary
waiver on Meyer’s part was the uncorroborated testimony
of Officers Hatfield and Morrissette.
Opposed to the State’s position is the uncontroverted
testimony of Mr. Meyer that he asked his wife to get him
his lawyer, the uncontroverted fact that the police refused
to allow Mrs. Meyer to see her husband at any time, and
the uncontroverted testimony describing the pattern of
misinformation which prevented Mr. Martin, the attor-
ney, from meeting with Mr. Meyer. Further, police testi-
mony admitted that Mr. Meyer was returned to the Bureau
of Criminal Investigations after his brief appearance
before the District Commissioner for the express purpose
of further interrogation, contrary to the Commissioner’s
Commitment Order. The Court in Epps v. Levine 457 F.
Supp 561, 567, (4th Cir, 1978) held that “under Maryland
law a person accused of a crime has (1) a right to have the
state court with jurisdiction over him. . . determine. . . to
whose custody he will be committed if pre-trial release is
not available, and (2) a right to remain in the custody of
the designated officer until further Court order.”
48a
The fact that Meyer signed certain papers before Com-
missioner O’Brien and evidently did not register any pro-
test is not dispositive of the waiver issue. The accused in
Miranda had signed a written waiver of rights — some-
thing Meyer never did — yet the Supreme Court found it
to be an invalid waiver of his rights as it was not a “know-
ing and intelligent” waiver, Miranda 384 U.S. at 475. The
circumstances of Meyer’s exceedingly brief meeting with
O’Brien hardly warrants a presumption of an informed
broad waiver of rights. Lasting no more than ten (10)
minutes, O’": 1 read to Meyer the charges and informed
him of certain rights, particularly those regarding the
availability of public counsel. O’Brien himself testified
that it would have taken him over an hour to read and ful-
ly understand the charging document that Meyer signed.
An appellate court, in considering the voluntariness of
the defendant’s statements, is not bound by determination
of the trial judge or jury. The constitutional concerns of
due process and the privilege against self incrimination
subject the issue of a confession’s admissibility to indepen-
dent judicial review Haynes v. Washington 375 U.S. 511,
515 (1961). The Court of Special Appeals in Meyer v. State
43 M.D. App 427 (1978) did not review this issue, nor was
it properly placed before the Court of Appeals. While the
prior appellate proceedings had focused upon the delay of
presentment issue as interpreted in Johnson v. State, the
fundamental issue of the voluntariness of Mr. Meyer’s
statements and the violations of his constitutional
privilege against self incrimination should now, all too
belatedly, form the focus of judicial review. The fact can-
not be ignored that Meyer’s statements constituted almost
the entire case against him; the other evidence taken alone
culd never support a conviction. With this in mind, the
words of the Supreme Court years ago appear clearly not
to have lost any import:
49a
We cannot blind ourselves to what experience
teaches: that even apart form the express threat,
the basic techniques present here — the secret
and incommunicado detention and interrogation
— are devices adapted and used to extort confes-
sions.
Haynes v. Washington 373 U.S. at 514. Mr. Meyer has
been denied the opportunity until now to call upon the
State to demonstrate that, in the face of the numerous in-
dications to the contrary, Mr. Meyer freely waived his
rights and voluntarily provided the State with the only
solid evidence it had.
Il. MEYER WAS DENIED HIS RIGHT TO COUNSEL AS
GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS OF THE U.S. CONSTITUTION AND AR-
TICLE 21 OF THE MARYLAND DECLARATION OF
RIGHTS, THROUGH HIS INCOMMUNICADO DETEN-
TION FOR INTERROGATION.
Out of the approximately fifteen (15) hours that Meyer
was held in police custody on October 8, 1977, he spent
close to twelve (12) hours being interrogated, in turn, by
two Prince George’s County officers. Both of these of-
ficers testified that Meyer at no time requested that the in-
terrogation stop and that he be allowed to reach counsel.
Yet there is no corroborative testimony for the officer’s ac-
count, as no one else was ever present during the inter-
rogation. The other officers who were in contact with
Meyer at some time during that day also testified that he
never expressed a desire to seek counsel. Aside from the
fact that these moments of contact were relatively short in
duration and merely custodial in character, Meyer had no
obligation to continually declare his desire to exercise his
constitutional right to counsel to the world in order to
preserve it. It is recognized that a person who is accus-
)
50a
ed of a crime, or who is the focus of a criminal investiga-
tion, and is held in police custody for interrogation is
guaranteed the right to assistance of legal counsel; any in-
criminatory statements obtained without the presence of
counsel and without information as to his rights is inad-
missible. Escobedo v. Illinois 378 U.S. 478 (1964),
Massiah v. U.S. 377 U.S. 201 (1969), Brewer v. Williams
430 U.S. 387 (1977). As the Supreme Cuort observed in
Massiah, 377 U.S. at 204:
A constitution which guarantees a defendant a
right of counsel at trial could surely vouchsafe no
less to an indicted defendant under interrogation
by the police in a completely extra-judicial pro-
ceeding. Anything less might deny a defendant
“effective representation by counsel” at the only
stage when legal aid and advise would help him.
The Supreme Court later held that the Massiah rule ap-
plied unindicted defendants as well as for indicted defen-
dants, Escobedo 378 U.S. at 485. The spirit of the law in
Massiah is clear and was strongly reiterated in Brewer v.
Williams. The crucial question with regard to Mr. Meyer,
in light of the fact that he was never allowed contact with
family, friends, or counsel, is thus: did Meyer knowingly
and intelligently waive his right to counsel?
Meyer testified that he instructed his wife to contact his
lawyer at the time of his arrest. This was not contradicted
by any testimony, nor was the fact that Mrs. Meyer, fami-
ly friends, and an attorney repeateldy, and unsuccessfully
tried to contact Meyer while he was in custody. It was the
State’s contention that Mr. Meyer submitted to lengthy in-
terrogation and made incriminatory statements voluntari-
ly and that he voluntarily waived his right to counsel. It is
true that an accused can waive such a right, but the
Sla
Supreme Court has made eminently clear the rigorous
standards by which a claim of waiver made by the State
must be evaluated. The Supreme Court reiterated these
standards in Brewer v. Williams 430 U.S. 387, 404, in
asserting that
(I)t was incumbent upon the State to prove an in-
tentional relinquishment or abandonment of a
known right or privilege. Johnson v. Zerbest 304
U.S. at 464. That standard has been reiterated in
many cases. We have said that the right to
counsel does not depend upon a request by the
defendant. Carniley v. Cochran 369 U.S. 506,
513; cf Mirana v. Arizona 384 U.S. at 471, and
that Courts indulge in every reasonable presump-
tion against waiver, eg. Brookhart v. Janis,
supra at 4; Glasser v. U.S., 315 U.S. 60, 70.
The “appropriately heavy burden” of establishing a
knowing and intelligent waiver of the right to counsel lies
with the State not only in matters concerning trial, but
with regards to an accused at a critical stage of the pre-trial
proceedings as well. Schneckloth v. Bustamonte 412 U .S
U.S. 218 (1973); Watson v. State 282 M.D. 73 (1977).
In the instant case, the nature of Meyer’s detention
raises a presumption against voluntary waiver. In
Escobedo the Supreme Court found on facts strikingly
similar to the instant case that the Sixth Amendment right
to counsel can be violated by police practices which lend
themselves to eliciting incriminating statements from an
accused without fully informing him of his absolute right
to remain silent and which deny him access to counsel
when so requested, Escobedo 378 U.S. at 490. Since Meyer
never signed any written waiver of rights, as the accused
did in Miranda, the only evidence of any such waiver was
the uncorroborated testimony of the police interrogators
52a
and the fact that Meyer eventually made the statements.
This evidence does not sustain the burden of proof re-
quired of the State in Kier v. State 213 M.D. 556 (1957);
Hale v. State 5 M.D. App 326 (1968). The State was re-
quired to establish an intelligent and knowing waiver of
rights; a waiver cannot be presumed either from the silence
of the accused after warnings are given him or form the
fact that a confession was eventually obtained, much as
the State does in this case. Miranda 384 U.S. at 475; Meyer
v. State 3 M.D. App 534 (1968).
The State was never required to explain why Meyer was
kept isolated for so long from his family, friends, and at-
torney. The Court observed in Nasirridden v. State 16
M.D. App 479, 479 (1972), that “In ascertaining whether
the court below made its decision as to the admissibility of
the statements within the required constitutional frame-
work, it is our duty to examine the entire record and make
an independent determination of the ultimate issue of
voluntariness. Gardner v. State 10 M.D. App 233, 245. So
it is with the instant case vis a vis Meyer’s claim that he was
denied counsel. The Court in Mullaney v. State 5 M.D.
App 248 (1968) held that a detrermination of an intelligent
and voluntary waiver should be made from consideration
of the total facts and circumstancs. See Brown vy. State 3
M.D. App 313 (1967). If the right to counsel indeed at-
taches only to the defendant personally, and cannot be in-
voked by the defendant’s wife or attorney, then certainly
their denial by the State of access to Meyer certainly
should be included in the Court’s evaluation of the volun-
tariness of Meyer’s alleged waiver of rights.
53a
APPENDIX H
IN THE CIRCUIT COURT FOR
PRINCE GEORGE’S COUNTY MARYLAND
GENE THOMAS MEYER
Petitioner
vs, : Criminal Trials No.
: 18621/18623
STATE OF MARYLAND : Law No. 95079
Respondent
SUPPLEMENTAL MEMORANDUM OF LAW IN
SUPPORT OF PETITION FOR POST
CONVICTION REVIEW
The State’s reliance on Saul v. State, 6 Md. App. 540,
aff'd 258 Md. 100 (1970) to defend its position that there
was no error committed where the Petitioner (hereinafter
“Meyers”) was involuntarily absent when the trial court
considered the jury’s request for a copy of Maryland Rule
723 is misplaced.
In that case, after the jury was instructed, the State and
defense counsel made their final arguments. The jury then
retired for deliberations. While deliberating, the jury sent
a note to the court asking for the Maryland statute regard-
ing the mental capacity of a defendant to commit a crime.
At that point counsel for the state and the defendant
and the defendant himself were called into chambers to
discuss the jury’s request. Counsel examined the jury’s
note and agreed that a photostatic copy of the statute
could be sent to the jury.
The Court did not reconvene, and the copy of the
statute was delivered to the jury.
54a
The Court of Appeals relied on the earlier decisions of
Young v. State, 5 Md. App. 383 (1968) and Midgett vs.
State, 216 Md. 26 (1958) and held that the defendant’s in-
voluntary absence when the copy of the statue was deliv-
ered to the jury raised conclusive presumption of pre-
judice. The conviction was reversed and remanded for a
new trial in the Circuit Court for Prince George’s County.
The Court was not, therefore, required as the State’s
memorandum suggests, to address the issue before this
Court. In fact, the Court inSau/, supra, at 108, specifically
states that it was unnecessary for it to decide the issue of
the propriety of the judge receiving a note from the jury
and answering it in the absence of the defendant.
In Young, supra, about an hour and a half after it had
begun deliberating, the jury sent a note to the trial judge
with a question. The jury returned to the box whereupon
the Court instructed them in response to the note. It was
stipulated on appeal that neither the defendant nor his at-
torney were present when the Court gave its additional in-
structions.
The Court of Special Appeals held that in so doing, the
court had committed reversible error requiring reversal
and new trial. Its decision was compelled by the right of
the accused to be present at every stage of his trial, a right
preserved by Article 5 of the declaration of rights, Con-
stitution of Maryland and Maryland Rule 775. The Court
also relied upon Midgett v. State, 216 Md. 26, at 36 (1957)
for the proposition that:
“In this State there is no doubt that an accused
in a criminal prosecution for a felony has the ab-
solute right to be present at every stage of his
trial from the time the jury is imapneled until ti
reaches a verdict or is discharged, and there can
~~
55a
be no valid trial or judgment unless he has been
afforded that right.”
In Midgett, supra, two notes were sent to the court by
the jury during their deliberations. The defendant was ab-
sent both times when the trial court undertook to answer
the questions. The answers to the questions raised by the
jury were not given to the jury in open court, but through
an exchange of notes while the jurors remained in the jury
room. In reversing the conviction of the Court of Appeals
laid down the principle which has guided subsequent
courts which have been called upon to address this viola-
tion:
“The constitutional guarantee includes the
right of the accused to be present (i) when the
jury is charged or instructed on the facts, the law
or form of the verdict, before it has begun its
deliberations or afterwards upon its request or by
direction of the court; (ii) when the court is
repeating a charge or instruction previously given
in whole or in part; (iii) when the court com-
municates with the jury in answer to questions
propounded by the jury, or (iv) when there shall
be any communication whatsoever between the
court and the jury; unless the record affirmative-
ly shows that such communica?ions were not pre-
judicial or had no tendency to influence the ver-
dict of the jury.” at 36.
Similarly, in La Guardia v. State, 190 Md. 450 (1948)
during their deliberations the jury sent a message to the
court inquiring whether less than twelve jurors could
recommend mercy for one of the defendants. The judge
replied to the question outside the presence of the defen-
dant or counsel. He sent them a reply that less than twelve
could recommend mercy.
56a
The Court of Appeals found the error to be harmless
because no juror made any recommendations concerning
either of the appellants. The communication could not
have possibly caused appellants prejudice.
However, the court did recognize that:
“In a felony case the trial judge should not
send any important communications to the jury
in reference to the case after it has been submit-
ted to them, except in open Court and with the
knowledge of the accused and his counsel and
their opportunity to be present. Private com-
munications between the judge and jury, even
though harmless in themselves, may open the
way to abusers and destroy public confidence in
legal procedure. La Guardia, supra, at 475.
Similarly in Shields v. U.S., 273 U.S. 583
(1927), the Supreme Court held it was reversible
error for the trial judge without giving notice to
the defendant to send a written instruction to the
jury.
In Saul, the defendant was absent for the ac-
tual giving of the transcript of the statute (a “part
of the trial”); it was unncessary for the Court to
consider whether the defendant’s absence when
the note was delivered from the jury to the judge
and when the jury’s request was being considered
by the judge and counsel, was a prejudicial
“communication”.
However, it is very significant that the Court
in dictum stated that even though the trial court
had committed reversible error in delivering the
copy of the statute to the jury out of the defen-
dants’ presence, and it did not have to decide
57a
whether the “communication” was prejudicial or
not, it did note:
“In any event, we fail to see where the record
affirmatively shows an absence of prejudice or a
tendency to influence the verdict of the jury and,
as was said in La Guardia, 190 Md. 450 (1948),”
* * * if record shows error by such communica-
tion, but does not show whether or not the error
was prejudicial, it is presumed to be pre,udicial
and requires a reversal.” Id, at 458 (emphasis
added).
Thus the burden is still on the State to show that the
record demonstrates beyond a reasonable doubt that the
denial of the right in those instances would not have pre-
judiced the defendant. See also, Noble v. State, 293 Md.
549, 568-9 (1982).
A case nearly in point is Bunch v. State, 281 Md. 680
(1978). In that decision the Court of Appeals held that a
criminal defendant was wrongfully denied the opportunity
to be presnt or be consulted at a bench conference which
occurred following the presentation of evidence during
which the trial judge and counsel considered a note a juror
had sent to the judge stating that he was biased. It is
significant that the Court relied heavily on Midgett, supra,
in its analysis of its holding that a defendant be present at
the bench conference under those facts.
In the instant case, after being excused for delibera-
tions, the jury sent a note to the judge during the luncheon
recess asking for a copy of Maryland Rule 723, any laws
read to it by the attorney(s) and testimony. (See attached
copy of p. 810 of the transcript of April 26, 1978).
The judge called counsel to the bench and told them
about the note and further told them that he would not
58a
honor the request. The record does not reveal whether
Meyer was present, but according to his sworn affidavit,
he was absent from the bench conference. See, Meyer’s af-
fidavit, par. 9.
The State argues that the absence of Meyer from the
judge’s consideration of the request is shown neither to be
prejudicial from the record nor had any influence on the
verdict. However, Meyer has sworn under oath that he did
not waive his right to be present and had he known of that
right he would have requested that he be present for that
part of the trial. See, Meyer’s Affidavit, par. 9.
Participation by a defendant in his own trial is a fun-
damental right guaranteed by the Constitution. Indeed, it
is one of the hallmarks of the American judicial system.
The recent discussion of a defendant’s right to be present
and assist in his own trial in Nob/e, supra, reaffirms, this
cornerstone of our system of justice. Here, the jury
wanted a copy of an important Maryland Rule which
would likely have great importance towards their ultimate
decision in the case. It cannot be disputed by the State that
the “waiver of counsel” issue was a criticial issue before the
jury.
It is a tribute to the jury’s diligence that it, in effect, told
the trial court that it did not understand the instruction it
had been given and that it could more properly render a
fair verdict if it had the requested matters before them.
In fact, in Sau/, supra, where this same issue arose, the
trial judge did provide the jury with a copy of the Statute
upon which its decision would be based.
Here, as in Saul, supra, and Duffy, supra, the jury ob-
viously did not understand the instructions given in his
presence or it would not have asked for further instruc-
59a
tions. What greater example of a need to give the jury the
written law which would ultimately decide the fate of the
defendant could be imagined?
Meyer’s affidavit states that he would have wanted to be
present for the trial judge’s consideration of the jury’s re-
quest.
The issue of prejudice to a defendant must rest on the
facts of each case. For example, in Noble, supra, a felony
murder case, the Court found no prejudice where a
prospective jury member was excused after telling the
judge during voire dire that both his father and brother
had been murdered. The Court held that although the
defendant was absent from the bench conference at which
time the prospective juror was excused, since the ruling
was entirely favorable to the defendant, it would have
been difficult to imagine what more the defendant could
have obtained had he been present.
Also, the defendant admitted he knew nothing about
the jury impaneling process and it was held that it was ex-
tremely doubtful that the defendant would have ques-
tioned the prospective juror anyway. The communication
could not have caused the defendant any prejudice. See
also, La Guardia, supra.
Contrasted with the defendant’s admissions indicating
that he could not have added anything to the process is
Meyer’s statement in his affidavit in this case in which he
states he would have sought to participate had he been
given the opportunity to do so. A denial of that right here
emphasizes the burden on the State to show beyond a
reasonable doubt that he could have not been prejducied.
The State has failed to meet that burden. It has not
shown otherwise in any respect.
60a
Nor is the State’s reliance on Brown v. State, 225 Md.
349 (1960) proper. That case merely holds that a defendant
has no right to be present while legal arguments over jury
instructions take place.
The facts of that case are inapposite to those presented
here, where after jury instructions were given to the jury,
it returned a note to the judge and that note was examined
and ruled on by the judge out of the presence of the defen-
dant.
The State in this case also argues that the Court in Saul,
supra, suggests that Meyer does not have grounds to pro-
test because he was “present” in the courtroom (unlike
Saul, who was in lockup when the conference on the
judge’s note took place), and because Meyer’s counsel
made no objection to the trial court’s actions.
Firstly, the term “present” does not mean merely
physically being in the courtroom. The clear purpose of a
defendant’s presence is so that he may have the opportuni-
ty to question or object to the discussion regarding the
jury’s question. A defendant’s right to have input into
those discussions was articulated in Duffy v. State, 151
Md. 456 (1926).
In that case the jury sent a vote to the trial judge during
deliberations that it did not understand an instruction it
had been given. In reversing the conviction due to the
defendant’s absence when the judge instructed them as to
the form of the verdict:
“It may be that it was a mere form of verdict
and that it did not injure the defendant, bet in
dealing with an absolute constitutional right, the
citizen ought not to be at the mercy of specula-
tion as to whether the violation of it did or did
6la
not injure him. Since the jury did not understand
the instructions as first given, it may have been
that the prisoner, if present, when they were in-
structed a second time, would have asked that
they be made clearer, or he may have objected to
their form. * * * If we held that under such cir-
cumstances he had no right to be present, it is not
easy to say under what circumstances his pres-
ence would be essential.” Duffy, supra, at 476.
It is obvious that a defendant’s right to be “present”
means actually able to provide him the goings-on and pro-
vide assistance to his own case. In the instant case,
although Meyer was in the courtroom during the bench
conference, the record shows that he was not at the bench
and therefore not able to lend assistance to his own case.
(See, attached copy of p. 810 of transcript of April 26,
1978).
In fact, because the judge did not disclose the very ex-
istence of the jury’s note to Meyer, it would be impermissi-
ble speculation for this Court to find that, as a matter of
law, Meyer was not prejudiced.
Secondly, the State’s argument that Meyer’s counsel
made no objection to his client’s absence from the bench
confer
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