Petition — Meyer v. Maryland

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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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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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Petition — Meyer v. Maryland · 464 U.S. 994 | Frix