Opposition Brief — Wiggins v. Smith, Warden

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No. 02-311 OCT

IN THE a

Supreme Court of the United States.

KEVIN WIGGINS,

Petitioner,

Vv.

THOMAS R. CORCORAN et al.,

Respondents.

On Petition For Writ of Certiorari

To The United States Court of Appeals

for the Fourth Circuit

BRIEF IN OPPOSITION

J. JOSEPH CURRAN, JR.

Attorney General of Marvland

GARY E. BAIR*

Solicitor General

ANN N. BOSSE

Assistant Attorney General

Office of the Attorney General

200 Saint Paul Place

Baltimore, Maryland 21202

(410) 576-6422

Counsel for Respondents

*Counsel of Record

QUESTIONS PRESENTED

1. Judge J. William Hinkel of the Circuit Court for

Baltimore County, Maryland, sitting without a jury, found

Kevin Wiggins guilty of first degree murder, robbery, and two

counts of theft. On direct review, the Court of Appeals of

Maryland rejected Wiggins’s claim that the evidence was not

legally sufficient to support his murder and robbery

convictions. Did the Fourth Circuit correctly determine that the

Maryland Court of Appeals had not unreasonably applied

clearly established federal law, as determined by this Court, in

sustaining Wiggins’s murder conviction?

2. Both Judge John F. Fader II of the Circuit Court for

Baltimore on collateral review and the Court of Appeals of

Maryland on appeal from the denial of post conviction relief

rejected Wiggins’s claim that sentencing counsel rendered

ineffective assistance by failing to develop a mitigation case.

Did the Fourth Circuit correctly determine that the Maryland

Court of Appeals had not unreasonably applied clearly

established federal law, as determined by this Court, in

rejecting Wiggins’s ineffectiveness claim?

PARTIES TO THE PROCEEDING

Wiggins names Thomas R. Corcoran and J. Joseph Curran,

Jr., as Respondents. Thomas R. Corcoran was the warden of

the Maryland Correctional Adjustment Center, where Wiggins

is incarcerated, when the Fourth Circuit issued its decision, but

he has been replaced by Sewall Smith. J. Joseph Curran, Jr., is

the Attorney General for the State of Maryland.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........cccccccccccess i

PARTIES TO THE PROCEEDING .................. il

ee es cc ckceecceskdceiececes l

STATEMENT OF JURISDICTION .................. 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...............0000: 2

STATEMENT OF THE CASE ....... Feuebebeneseess 2

A. Wiggins’s Trial ......... edeenadbadestee es 2

Fee 13 |

C. Wiggins’s Direct Appeal and State Post

Conviction Proceedings .................... 15

D. Proceedings on Habeas Review .............. 17

REASONS FOR DENYING THE WRIT ............. 18

I. THE MARYLAND COURT OF APPEALS’

DECISION SUSTAINING WIGGINS’S

MURDER CONVICTION DOES NOT

INVOLVE AN UNREASONABLE

APPLICATION OF CLEARLY

ESTABLISHED PRECEDENT OF THIS

DEERE EGESESGESS ES Ebececccceccccce 18

IV Page

Il. THE MARYLAND COURT OF APPEALS’

DECISION REJECTING WIGGINS’S

CLAIM THAT SENTENCING COUNSEL

RENDERED INEFFECTIVE ASSISTANCE

BY NOT DEVELOPING A CASE IN

MITIGATION DOES NOT INVOLVE AN

UNREASONABLE APPLICATION OF

CLEARLY ESTABLISHED PRECEDENT

SP Tee ee ccc cccccccceccccsccesss 23

EEE ccccducdansdcdccacaceccenecasseas 29

GE 8 64h edo nceeeeddenssecanencdussdeness la

TABLE OF AUTHORITIES

Cases:

Barnes v. Thompson, 58 F.3d 971 (4th Cir.),

cert. denied sub nom. Barnes v. Netherland,

516 U.S. 972 (1995) 2.2... cece ecceeccceuceceuees 27

Bell v. Cone, 122 S. Ct. 1843 (2002) ......... 0000. 25, 29

Burger v. Kemp, 483 U.S. 776 (1987) ..........0. 16, 27

Jackson v. Virginia, 443 U.S. 307 (1979) ....... 18 passim

Penry v. Lynaugh, 492 U.S. 302 (1989) .............. 27

Strickland v. Washington, 466 U.S. 668 (1984) .. 16 passim

Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980) .... 20

Page

West v. State, 312 Md. 197, 539 A.2d 231 (1988) .... 19, 20

Wiggins v. Corcoran, 164 F.Supp. 2d 538 (D. Md. 2001).. 1

Wiggins v. Corcoran, 228 F.3d 629 (4th Cir. 2002) ...... ]

Wiggins v. Maryland, 503 U.S. 1007 (1992) ........... 15

Wiggins v. Maryland, 528 U.S. 832 (1999) ............ 17

Wiggins v. State, 324 Md. 551, 597 A.2d 1359 (1991),

cert. denied, 503 U.S. 1007 (1992) ...............5.. l

Wiggins v. State, 352 Md. 580, 724 A.2d 1,

cert. denied, 528 U.S. 832 (1999) ... 2... ee een l

Williams v. Taylor, 529 U.S. 362 (2000) ........ 18 passim

Wilson v. State, 319 Md. 530, 573 A.2d 831 (1990) .. 18, 20

Woodby v. INS, 385 U.S. 276 (1966) .... 2.2.2... 265. 21

Wright v. West, 505 U.S. 277 (1992) .......... woecese 22

Constitutional Provisions:

United States Constitution:

ED cn éctdsscancesccesssccesseses 2

Page

Statute:

Ps ED ccccccccccduncccccessesscessusess 2

Bs PED cccccccccscceccesoccccesees 2 passim

Rules:

PE GS ec cccccccccccccctccceesccessswsess 20

eee

BRIEF IN OPPOSITION

Respondents, Warden of the Maryland Correctional

Adjustment Center and the Attorney General of the State of

Maryland, respectfully request that this Court deny the petition

for writ of certiorari filed by Kevin Wiggins.

OPINIONS BELOW

Wiggins stands convicted of first degree murder and

robbery, and for these crimes has been sentenced to death and

a 10-year term of incarceration. Wiggins asks this Court to

issue a writ of certiorari to review the May 2, 2002 decision of

the United States Court of Appeals for the Fourth Circuit

reversing the United States District Court for the District of

Maryland’s order granting federal habeas corpus relief and

vacating Wiggins’s murder conviction and death sentence.

The Fourth Circuit’s published opinion, Wiggins v.

Corcoran, 228 F.3d 629 (4th Cir. 2002), is reproduced at Pet.

App. la-26a, and the court’s order denying Wiggins’s petition

for rehearing and rehearing en banc is reproduced at Pet. App.

157a-158a. The published opinion of the United States District

Court for the District of Maryland, Wiggins v. Corcoran, 164

F.Supp. 2d 538 (D. Md. 2001), granting habeas relief, is

reproduced at Pet. App. 28a-89a.

The February 10, 1999 reported decision of the Court of

Appeals of Maryland, Wiggins v. State, 352 Md. 580, 724 A.2d

1, cert. denied, 528 U.S. 832 (1999), affirming the denial of

state post conviction relief by the Circuit Court for Baltimore

County, Maryland, is reproduced at Pet. App. 92a-130a. The

unpublished opinion of the Circuit Court for Baltimore County,

Maryland (Fader, J.) denying state post conviction relief is

reproduced in part at Pet. App. 13la-156a. The Court of

Appeals’ reported opinion affirming Wiggins’s murder and

robbery convictions and his sentence of death and term of

incarceration, Wiggins v. State, 324 Md. 551, 597 A.2d 1359

(1991), cert. denied, 503 U.S. 1007 (1992), is reproduced

herein at la-38a.

STATEMENT OF JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Wiggins reproduces 28 U.S.C. § 2254 at Cert. App. 159a-

162a, but fails to set forth U.S. Const., Amend. VI, which

provides in pertinent part that

[i}n all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for his

defence.

STATEMENT OF THE CASE

A. Wiggins’s Trial

By indictment filed in the Circuit Court for Baltimore

County in October, 1988, Wiggins was charged with the first

degree murder of Florence Lacs and other offenses. J.A. 6.'

For the murder, Maryland sought the death penalty. J.A. 1050.

The evidence introduced at Wiggins’s trial was

summarized as follows by the Maryland Court of Appeals on

direct appeal:

Florence Lacs, the seveaty-seven-year-old murder

victim, resided at the Clark Manor Apartments in

Woodlawn, Maryland. On Saturday afternoon, September

17, 1988, at approximately 3:50 p.m., her dead body was

found in the bathtub of her apartment. She was lying on

her side, half-covered by cloudy water of a slightly

greenish hue. She was fully clothed in a blue skirt, a white

: References herein to J.A. are to the Joint Appendix filed in the

Fourth Circuit.

hls

blouse, and white beads. She was not wearing underpants

and her skirt was pulled up to her waist in the back. No

shoes were on the body, but one bedroom slipper was

floating in the bathtub (its mate was lying in the hallway

of her apartment).

The evidence at trial showed that on Thursday,

September 15, the victim drove Mary Elgert to a luncheon.

Elgert testified that the victim was then wearing a light

blue skirt, white blouse, and white shoes. She said that the

victim drove her home from the luncheon at 4 p.m. that

day.

Edith Vassar was also in attendance at the luncheon.

She testified that on the day after the luncheon, Friday,

September 16, at approximately 10 a.m., the victim

phoned her and they discussed an event that occurred at

the luncheon the previous day.

Elizabeth Lane was present at the luncheon on

September 15. She recalled driving by the victim’s

apartment complex the following day at 4 p.m. and noted

that her car was not in the parking lot. When the victim

failed to attend a scheduled card game at Lane’s house on

Saturday, September 17, the police were contacted at 2

p.m. and Ms. Lacs was reported missing. Lane told the

police that she had last seen the victim on September 15

and that she was wearing a red dress at that time.

In the afternoon of Saturday, September 17, the

apartment manager, Joseph Thiel, was alerted by the police

and he entered the victim’s apartment. He testified that the

deadbolt lock on the door was unlocked, but that the knob

lock was locked. He discovered the victim lying dead in

the bathtub. The police arrived shortly thereafter. They

found no evidence of forced entry into the apartment, but

it had been partially ransacked. Several drawers had been

removed from various locations within the living and

dining rooms and were found on the floor. The night stand

drawer was pulled out and its contents were in disarray.

The headboard of the bed had two built-in enclosures;

they stood open and their contents were likewise in

disarray. A drawer from the buffet was on the bed with

items strewn all around it. The bed was mussed, with the

mattress sitting askew on the box spring; the pillow cases

were missing., A damp cloth was lying on the dining room

table and a damp towel was lying on the victim’s bed. In

the kitchen, the window was slightly open but the screen

was intact. The cabinets were open and some bottles of

household cleaner were lying on the floor. The tap was

running in the kitchen sink. In the bathroom on the sink

were a spray can of insecticide, a bottle of household

cleaner and a bottle of dishwashing liquid.

On the floor inside the front door of the apartment was

a baseball cap which displayed a Ryder Rental Truck logo

on its bill. On the coffee table in front of the sofa were

two T.V. Guides, one of which was dated from September

10 to 16; the evening programs had been marked by pen

through September 15; and a bookmark had been inserted

at the page delineating the September i5 programs. The

other T.V. Guide was for programs from September 17 to

23; it was unopened.

Seven latent fingerprints were recovered from inside

the entrance door of the victim’s apartment, the archway

wall of the kitchen, and the doorjamb leading into the

bathroom. The police also processed what appeared to be

wet wipe marks on the front face of an end-table drawer

found on the living room sofa. These marks, however, had

no comparison value. Similar markings were observed on

a Cleaning bottle in the bathroom. The seven latent prints

were compared to Wiggins’s prints and found not to

match. Two of the prints were identified as being made by

one of the police officers on the scene. The other five

prints were not identified.

Paramedics arrived on the scene and pronounced the

victim dead at 3:50 p.m. At that time, the paramedic noted

. —

that there was expiratory cyanosis about the victim’s lips

and face, that her pupils were dilated, and that her arm and

jaw were rigid. She was removed from the bathtub during

the evening of Saturday, September 17, in the presence of

Dr. Stanley Felsenberg, the Deputy State Medical

Examiner, who arrived 9n the scene at 9 p.m. The body

was transported to the Medical Examiner’s office in

Baltimore, and tagged and refrigerated at approximately

midnight.

Dr. Margarita Korell, Assistant State Medical

Examiner, performed an autopsy on the body on the

morning of September 18. She concluded that the cause of

death was drowning and that the manner of death was

homicide. She found a contusion on the dorsal surface of

the left hand and a tiny hemorrhage in the neck area. She

testified that these injuries were produced by “some

external force” and were consistent with a struggle prior to

the victim’s death. Asked whether she could state “the

minimum amount of time Ms. Lacs had been deceased,”

Dr. Korell responded that there was no way that she could

say for certain when the victim died. She “guessed” that

it could have been more or less than forty-eight hours,

depending upon a number of factors. Upon objection, the

court struck Dr. Korell’s testimony “with respect to the

time of death.” It permitted in evidence, however, that Dr.

Korell was unable to state, with a reasonable degree of

medical certainty or probability, “what the maximum

period of time was.”

Chianti Thomas, age twelve at the time of trial,

testified that on September 15, at approximately 4:30 or 5

p.m., she was visiting with Chantell Greenwood and

- Shanita Patterson at an apartment next to the victim’s

apartment. When they were leaving the apartment, Shanita

had difficulty in locking her apartment door and sought

assistance from the victim. While the victim was

attempting to help lock the door, a man, later identified as

EEE ne aN ee eT he

Wiggins, volunteered his assistance. When the telephone

rang inside Shanita’s apartment, she and Chantell went to

answer it. While they were gone, Chianti heard Wiggins

thank the victim for watching some sheetrock for him and

heard the victim converse briefly with Wiggins. The

evidence disclosed that this conversation occurred at

approximately 5 or 5:30 p.m. Thereafter, the girls left the

apartment building. Several weeks later, Chianti was

shown photographs of six men. She selected Wiggins’s

photograph as the person that “looked the closest to the

man that was in the building.” Chianti was unable to

identify Wiggins at the trial.

Robert Weinberg, a contractor, testified that he was

performing work at the Clark Manor Apartments at the

time of the victim’s death. He said that he had employed

Wiggins on September 14 and that on September 15, while

Wiggins was carrying equipment from the apartment to a

truck, the victim called out of her apartment window and

expressed concern to Wiggins that the truck might block

her car. Weinberg remembered assuring the victim that

the truck did not block her car. Weinberg released

Wiggins from work on September 15, sometime between

4 and 4:45 p.m. He said that approximately twenty-five to

thirty-five minutes thereafter, Wiggins told him that he had

moved some sheetrock from one side of the building to

another, a task that Weinberg had not asked him to

perform. Weinberg testified that it would have taken only

two minutes for Wiggins to move the sheetrock. Weinberg

also testified that Wiggins appeared for work on Friday,

September 16, but left early, stating that he was being

evicted that day.

The evidence disclosed that on the evening of

September 15, at about 7:45 p.m., Wiggins, driving the

victim’s orange Chevette, went to the home of his girl

friend, Geraldine Armstrong. According to her testimony,

they went shopping and made several purchases, using the

victim’s credit cards, which Wiggins told Armstrong

belonged to his aunt. Armstrong said that she signed the

victim’s name to the charge slips because Wiggins said his

handwriting was bad. The following day, September 16,

Wiggins drove Armstrong to work in the victim’s car, after

which they again went shopping, using the victim’s credit

cards to purchase additional items, including a diamond

ring at a J.C. Penney store, for which they received a

certificate. Wiggins, she said, gave a false name and

address for the certificate. On Saturday, September 17,

Wiggins and Armstrong pawned a ring which Wiggins

told Armstrong he had found in the car. The ring belonged

to the victim.

On the evening of September 21, Wiggins and

Armstrong were arrested by the police while driving in the

victim’s vehicle. At that time, Wiggins told the police that

Armstrong “didn’t have anything to do with this.” Ina

statement to police, Wiggins claimed that he found the

victim’s car with the keys in it on a restaurant parking lot

on Friday, September 16; that the credit cards were in a

bag on the floor of the car; and that the ring was also

found in the car. Wiggins admitted using the credit cards

and pawning the ring. He stipulated with the State that he

used the victim’s credit cards to make several purchases on

the evening of Thursday, September 15.

At the time of Wiggins’s arrest, the police seized a

rubber glove from a pocket in his trousers. There was no

evidence of an association between the glove and the

various liquids in the victim’s bathroom.

The State presented testimony from Christopher

Turner, who claimed to have met Wiggins during his

pretrial incarceration in October, 1988. Turner, who has

a history of serious mental illness and drug abuse, testified

that Wiggins told him that he had stolen a car and killed

the lady to whom the car belonged. Turner said that

Wiggins admitted that he had kicked the lady and beaten

her, and then drowned her in the bathroom, and had put

something like lye or ammonia in the water. According to

Turner, Wiggins said that he had taken the lady’s purse,

credit cards, and some money, after which he drove away

in her car. Turner also testified that Wiggins took a ring

from the victim’s finger; that he used the credit cards to

buy clothes; and that he also permitted his girlfriend to

os ane

was performed, rigor mortis was fully developed, and that

it had been broken. In this regard, he said that ngor mortis

becomes fully developed around eight to twelve hours

after death. Dr. Kauffman noted that the body was

refrigerated at the Medical Examiner’s office shortly

before midnight; and he believed that, at that time, the

victim had been dead twenty-one hours at the most. -

Br. in Opp. App. 2a-9a. On the record before him, Judge J.

William Hinkel, sitting without a jury, found Wiggins guilty of

murder, robbery, and two counts of theft, saying:

use the credit cards.

John McElroy testified that he met Wiggins in the

county detention center and that Wiggins asked him

whether, at his trial, the authorities could use a hair sample

against him. McElroy said that Wiggins admitted that he

had hit a lady in the back of the head and put her in the

bathtub of her house, drowned her, and then took $15,000

from the house. McElroy also testified that Wiggins told

him that he had a girlfriend named Geraldine.

The defense presented the testimony of Gregory

Kauffman, a physician with expertise in the field of

forensic pathology. He testified that there was nothing in

the autopsy report that made drowning seem a likely cause

of the victim’s death. He said that drowning seemed

unlikely because the body showed no evidence of a

struggle. He agreed that the manner of death was

homicide. As to the time of death, Dr. Kauffman said that

when the victim’s body was first photographed at 9 p.m.

on Saturday, September 17, she had been dead a maximum

of eighteen hours. He reasoned that there were no

decompositional changes at that time, which would have

been evident in bodies that had been dead longer than

eighteen hours. Dr. Kauffman referred especially to the

inside and back of the left arm. In these areas, he said,

there was lividity, or settling of the blood, and that

decompositional changes occur first in areas where the

blood has settled. He noted the absence of swelling or

bloating, and the absence of marbling, and skin slippage.

Dr. Kauffman further opined that at the time the autopsy

I suppose I should start by saying that there are certain

things in the case that the State and the defendant need to

know that I do not consider as real evidence in the case.

As a fact finder, it is my responsibility to weigh all of

the evidence which is available to the State and favorable

to the defendant, favorable including all those reasonable

inferences that can be drawn from the evidence.

So you all don’t wonder throughout what I am about to

say, let me tell you that John McElroy is not believed by

this court. I do not believe that the defendant made the

statement to McElroy which Mc.lroy atributes to the

defendant. I just don’t believe it.

With respect to Christopher Turner, I’m persuaded

even more now than I was when I ruled on the motion that

he was competent to testify. As he went along, I became

even more certain that he was competent to testify, but as

he went along, I became more and more convinced that he

was not trustworthy, and I do not believe that the

defendant gave a statement to Mr. Turner confessing this

crime. I do not believe his statement that Turner attributes

to the defendant was, in fact, made.

The evidence persuade me to these facts: That the

. defendant was employed at the Clark Manor apartments

for the subcontractor Robert Weinberg or the Weinberg

family anyway. He was there working in and around

Apartment F of 1951 Woodlawn Drive. I’m persuaded

that the defendant knew who Mrs. Lacs was. I’m further

persuaded that he knew that the red orange Chevette was

her car.

The testimony of Chianti Thomas is not strong as a

positive identification of the defendant, but when taken

with the other evidence that is without any serious dispute,

I’m persuaded that she saw him there, but even without

Chianti Thomas’s testimony or photo ID, I’m persuaded

that Mr. Wiggins was at the apartment area. No one saw

him in the apartment but he was seen in the hallway. Seen

outside. He worked there. He was there at a relevant time.

I find also as a fact that the defendant was in

possession of Mrs. Lacs’ automobile and at least two of

the credit card on the evening of Thursday, September

15th. This court rejects as untrue what is stated in Mr.

Wiggins’s written statement given to Detective Crabbs. I

do not believe that he came upon that vehicle at 1 o’clock

on the parking lot of Roy Rogers. That is just not so. He

came into possession of that automobile and those credit

cards and for that matter, the ring, on the evening of

September 15th. That I find as a fact.

Now, a lot has been made over the exact time of death.

I don’t know the exact time of death. I am persuaded,

however, from all of the evidence that the death of Mrs.

Lacs did not occur sometime between 9 p.m. on September

17th and 3:00 a.m. on 9 - 17, which would be the 18 hour

period that was testified to by Dr. Kauffman. | am

persuaded that it occurred on Thursday the |Sth of

September.

The cause or the manner of death is undisputed, and I

find from all of the evidence that the manner of death was

homicide. I don’t intend to make a finding of fact as to

every piece of evidence that has been introduced, but I do

believe it is important to state what other facts I find to be

true.

Ms. Elgert testified that Mrs. Lacs was wearing a white

blouse and a blue skirt on Thursday. On Saturday she was

wearing a white blouse and a blue skirt. That’s not only in

testimony. Although it was called a bluish green skirt, the

photographs indicate a blue skirt, the color photographs.

She either saw that on Thursday, or she predicted that the

next day Mrs. Lacs would wear that same combination. |

find as a fact that she was wearing it on Thursday and that

Mrs. Lane was mistaken when she gave a missing person’s

report that it was a red dress.

I also find that the credit cards were, as | said, not

found in the car but were taken from the apartment.

There’s ample evidence in this case to support that. The

ransacking of the apartment took place at the same time

that the property was taken. The credit cards were taken

from the apartment as well as I am persuaded that the keys

came from the apartment. That all occurred on Thursday.

We know that the car was gone, and we know that the

credit cards were in the possession of the defendant on

Thursday. The ransacking took place on Thursday. How

the defendant entered the apartment is not known, and it

makes no difference, for I’m persuaded that he entered the

apartment and that he was the one who took the property.

As close as I can come to the time that it occurred is

that it had to occur sometime after the defendant finished

work on Thursday at the time he appeared with the

automobile and credit card at the home of Geraldine

Armstrong. That leaves to be explained the testimony of

Ms. Vassar who says she spoke with Mrs. Lacs on Friday

about 10 or 10:30 in the morning. The State, of course,

vouches for its own witnesses, but I don’t believe that Mrs.

Vassar correctly remembers. All of the other evidence in

this case is so overwhelming that it is not so.

The defendant, of course, is in possession of recently

stolen property. The defense argues that any presumption

that he is the robber is rebutted by the testimony of Ms.

Vassar, but my decision is not based on any presumption

arising from the recent possession of stolen property, but

my belief and fact finding and decision is based upon all

the evidence that I have weighed in this case and not by

any presumption.

I’m persuaded beyond a reasonable doubt that the

defendant caused the death of Florence Lacs and that this

was done wilfully, deliberately and premeditatedly. I’m

further convinced beyond a reasonable doubt that the

defendant committed the crime of robbery?

THE DEFENDANT: He can’t tell me I did it. I’m

going to go out.

THE COURT: That during the commission of the

robbery, the defendant killed Florence Lacs?

THE DEFENDANT: I didn’t do it. He can’t tell me

I did it.

THE COURT: Therefore, the verdict is guilty of the

first degree and second degree counts. First count being

first degree murder and the second count being robbery.

I’m further convinced beyond a reasonable doubt that the

defendant committed the crime of theft, the taking of the

credit card and that he committed the crime of theft by

taking the automobile of Mrs. Lacs; therefore, the verdict

is guilty as to the fourth and fifth counts. The sixth count

is also in reference to the automobile and is merged into

the fifth count.

J.A. 546-51.

? Wiggins would have this Court believe that Geraldine

Armstrong made a deal to protect herself and her brothers, see Cert. Pet. 2-

3, 20, one of whom Wiggins says “lived in an apartment directly underneath

that of the victim,” Cert. Pet. 3. In so urging, Wiggins relies on evidence

that was not introduced at his trial, and ignores the fact that the state courts,

see Cert. App. 127a, have found no basis for the allegation that Geraldine

Armstrong had an agreement with the state that resulted in lenient

treatment.

ae se oi we

B. Wiggins’s Sentencing

Wiggins was represented at trial and at sentencing by Car!

Schlaich and Michelle Nethercott. J.A. 20-1047. Respecting

Wiggins’s sentencing proceeding, the Maryland Court of

Appeals on direct review said:

As Wiggins elected to be sentenced by a jury, much of

the testimony adduced at the trial was repeated. There

were, however, some differences between the evidence

offered at trial and at the sentencing proceeding.

Dr. Korell told the jury that the victim died of

drowning and that the manner of death was homicide. She

testified that the victim sustained a contusion of the left

hand and that it was a traumatic defensive-type injury. She

made no mention of the hemorrhage in the victim’s neck

area. As to the time of death, Dr. Korell said that taking

into account a number of factors, including that the body

was refngerated the entire night prior to the autopsy, she

could not pinpoint the time of death. She estimated that

the victim “could have died 24 or 48 hours before she was

photographed at the crime scene at 9 p.m. on September

17,” or earlier if, as stated by the paramedic, rigor mortis

was present at 4 p.m. on that day.

Dr. Ann Dixon, the Deputy Chief State Medical

Examiner, testified that the victim died at least twenty-four

hours before Dr. Felsenberg examined the body at the

crime scene and that death could have occurred thirty-six

or forty-eight hours prior to that examination, or even

farther back than that.

Chantell Greenwood testified that the victim was

wearing a red pleated skirt and a long-sleeved white blouse

when she last saw her on September 15 in the apartment

hallway. She said that on that date, at approximately 5:40

p.m., she heard the victim and a painter exchange a few

words in the hallway. Chianti Thomas reiterated her

testimony about her visit to Shanita, the victim’s neighbor,

on September 15. She told the jury that the girls had

difficulty locking the door behind them; that they enlisted

the help of the victim; that a man appeared on the scene at

that time; and that she observed a brief exchange of words

between the victim and the man she later identified as

Wiggins. Thus, Chianti’s trial testimony differed from her

testimony at sentencing in her identification of Wiggins.

Before the trial, Chianti had selected Wiggins’s

photograph from a group of photographs that the police

had shown to her. She was, however, unable to make an

in-court identification. At the sentencing hearing,

however, when the prosecutor asked Chianti, “[a}]nd whose

picture did you pick,” she made an in-court identification

of Wiggins.

Dr. Silvia Camparini, an expert pathologist, testified

for the defense that the body had not been dead more than

twenty-four hours when Dr. Korell performed the autopsy

at 9 a.m. on September 18.

In its sentencing determination, the jury concluded

beyond a reasonable doubt that Wiggins was a principal in

the first degree to the murder of Florence Lacs, and that

one aggravating circumstance had been proven, namely,

that Wiggins committed the murder in the course of

robbing the victim. The jury unanimously found by a

preponderance of the evidence that one mitigating

circumstance existed, namely, that Wiggins had not been

previously convicted of a crime of violence. An additional

mitigating circumstance was found by one or more of the

jurors, but fewer than all twelve, namely, Wiggins’s

“background.” The jury unanimously found that the State

proved by a preponderance of the evidence that the proven

aggravating circumstance outweighed the mitigating

circumstances and it imposed the death penalty.

Br. in Opp. App. 10a-1 1a.

Te Re et

ee eee -

Phere + ae em OW) «*

C. Wiggins’s Direct Appeal and State Post Conviction

Proceedings

On appeal to the Court of Appeals of Maryland, Wiggins

complained, inter alia, that the evidence was sufficient to

establish his guilt of murder. Br. in Opp. App. 2a. In

November, 1991, Maryland’s high court affirmed all but

Wiggins’s theft convictions. Br. in Opp. App. la-38a. This

Court subsequently denied Wiggins’s petition for certiorari.

Wiggins v. Maryland, 503 U.S. 1007 (1992).

In January, 1993, Wiggins initiated state post conviction

proceedings in the Circuit Court for Baltimore County. J.A.

14. Ina257-page decision filed in October, 1997, Judge Fader

denied relief. J.A. 1451-1707. In doing so, Judge Fader spent

24 pages discussing Wiggins’s claim that counsel at sentencing

rendered ineffective assistance by failing to develop and

introduce evidence concerning Wiggins’s background and

mental retardation. J.A. 1680-1704. Judge Fader’s decision

recounts in detail the testimony of several witnesses who

iestified in connection with Wiggins’s claim, including Carl

Schlaich, one of Wiggins’s counsel at sentencing; Hans Selvog,

a clinical social worker who prepared a social history of

Wiggins following sentencing; and Gerald Fisher, a criminal

law practitioner produced by Wiggins’s post conviction counsel

as an expert on the issue of ineffectiveness. Cert. App. 136a-

155a.

In summarizing Mr. Schlaich’s testimony, Judge Fader

stated in part:

The Wiggins defense team did not have a forensic

social worker to do a social history on Wiggins in

preparation for sentencing. No social worker, psychologist

or psychiatrist testified for Wiggins.

Defense counsel Schlaich said that he had seen cases

where a social worker, psychologist or psychiatrist had

testified and that testimony had backfired. Through

cross-examination of the witness at trial, more bad about

the defendant had been developed. He testified that on

cross examination of these witnesses there were questions

asked and answers given that could be construed as seeing

the Defendant as a dangerous person and as giving reasons

why the jury should not be merciful. There was a PSI

done in this case and Schlaich supplied information to the

writer of that report.

* * *

Schlaich testified that he had attended Public Defender

sponsored seminars while with that office, including one

that included a topic on forensic experts. He knew The

National Center for Institutional Alternatives as a place he

had used in the past in some cases in an attempt to

establish mitigation and to find places short of

incarceration with recommendations for treatment centers.

He had not used them in a capital proceeding. He did not

ask that the services of a forensic social worker be

obtained to do a social history on the Petitioner. When

questioned by post-conviction counsel concerning the

holding of certain Supreme Court case names involving

mitigation factors, he was uncertain of the specific holding

of any of those cases. Schlaich did say that low

intelligence and sexual abuse of the defendant could be

mitigating circumstances in a capital case.

Trial tactics meant that Schlaich wanted to two shots

at the issue of whether Wiggins was a principal in the first

degree. In his opinion this was a “reasonable doubt” case

on the question of time of murder and the ability of the

State to place Wiggins at the scene at the time of the

murder.

Cert. App. 136a-138a. (footnotes omitted). In concluding that

sentencing counsel had not rendered ineffective assistance as

alleged, Judge Fader looked at several other cases where

counsel’s performance had been challenged, including Burger

v. Kemp, 483 U.S. 776 (1987), and Strickland v. Washington,

466 U.S. 668 (1984), J.A. 1699-1703, and then ruled that

[nJone of the above decisions is on a direct parallel

with the facts in this case. To argue differences, is to

argue differences that matter not. This court does not

accept Fisher’s testimony that it was error not to present

information along the lines of the Selvog report. Schlaich

made a tactical decision and it was reasonable. Further,

Selvog’s report would have had a great deal of difficulty

in getting into evidence in Maryland. He was not licensed

in Maryland, the report contains multiple instances of

hearsay, it contains many opinions in the nature of

diagnosis of a medical nature. Lastly, how do we know

what information would have been presented by the State

to contradict what was contained in Selvog’s report? We

have seen instances where the defense does a work-up, the

State does a work-up, and the trial goes forward without

either because the defense is worried about how wide the

door will be opened. Strickland and the other cases cited

have wisely told trial courts to avoid this second guessing.

J.A. 1704.

The Court of Appeals of Maryland exercised its discretion

to review Judge Fader’s decision, and thus Wiggins’s

complaint that counsel provided ineffective assistance at

sentencing by failing to investigate and introduce mitigation

evidence about Wiggins’s background and mental problems.

J.A. 1710. In February, 1999, the Maryland Court of Appeals

affirmed the circuit court’s judgment. Pet. App. 92a-128a.

This Court thereafter refused to review that judgment. Wiggins

v. Maryland, 528 U.S. 832 (1999).

D. Proceedings on Habeas Review

Wiggins filed an application for federal habeas relief on

August 6, 1999. J.A.3, 1725-62. The application was granted

on September 18, 2001, because the district court (Motz, C.J.)

found that the evidence was insufficient to convict Wiggins of

murder and that counsel at sentencing had rendered ineffective

assistance by failing to develop a mitigation case. Pet. App.

28a-9la. On appeal, the United States Court of Appeals for the

Fourth Circuit reversed on the grounds that the state courts had

not unreasonably applied clearly established federal law as

determined by this Court in affirming Wiggins’s murder

conviction and in finding that counsel had not rendered

ineffective assistance of counsel at sentencing. Pet. App. la-

26a.

REASONS FOR DENYING THE WRIT

THE MARYLAND COURT OF APPEALS’

DECISION SUSTAINING WIGGINS’S MURDER

CONVICTION DOES NOT INVOLVE AN

UNREASONABLE APPLICATION OF CLEARLY

ESTABLISHED PRECEDENT OF THIS COURT.

Wiggins posits that the Fourth Circuit’s decision regarding

the claim of insufficient evidence to support his murder

conviction conflicts with Jackson v. Virginia, 443 U.S. 307

(1979), and decisions of other courts of appeals, and that the

Fourth Circuit applied a “minimal consistency” standard that

runs afoul of the standard for reviewing habeas cases under 28

U.S.C. §2254(d) announced in Williams v. Taylor, 529 U.S.

362 (2000). Wiggins is wrong on all counts, and so there is no

need for further review of his case by this Court.

Respecting Wiggins’s claim of insufficient evidence to

support his murder conviction, the Maryland Court of Appeals

said:

Wiggins maintains that because his convictions rest

solely upon circumstantial evidence, they cannot be

sustained unless they are inconsistent with any reasonable

hypothesis of innocence. For this proposition, he relies

upon Wilson v. State, 319 Md. 530, 535-37, 573 A.2d 831

eet

OF wm

ee ee ee es

(1990) and West v. State, 312 Md. 197, 207-13, 539 A.2d

231 (1988). He urges that because the circumstances

permit a reasonable hypothesis of his innocence of robbery

and murder, the evidence is not legally sufficient to

establish that he was the perpetrator of those _ offenses.

In this regard, Wiggins postulates that a substantial

number of hours intervened between the time that he came

into possession of the victim’s property and the time that

she died. He contends that the State’s evidence does not

preclude the reasonable hypothesis that he entered the

victim’s apartment and stole her ring, car keys, and credit

cards from her purse while she was attempting to help her

neighbor lock her door. Wiggins suggests that he could

have easily slipped into the victim’s apartment and taken

these items from her purse, which could have been resting

just inside the door, or otherwise in plain view. He readily

acknowledges that the State proved a legally sufficient

case for a theft conviction, based on his subsequent

possession of the victim’s property and on his presence at

the crime scene; but he argues that this alone does not

prove that he committed robbery at the time he came into

possession of the victim’s property. Nor, he says, does it

support an inference that he is guilty of murder, especially

in view of the State’s failure to establish that the victim

died on September 15. As to this, Wiggins invites

attention to Dr . Kauffman’ s testimony that the victim did

not die on September 15 but more likely on September 17.

Moreover, Wiggins points to other evidence that miti gates

against his guilt, namely, the testimony of the victim’s two

friends, one of whom testified that she received a

telephone call from the victim on Friday morning,

September 16, and the other who described the victim as

wearing a red dress on Thursday afternoon, September 15.

This evidence, according to Wiggins, highlights the State’s

failure to prove that the victim was dead before or at about

the same time that he came into possession of her car and

other belongings on September 15.

In Tichnell v. State, 287 Md. 695, 415 A.2d 830

(1980), an appeal in a death penalty case, we stated that the

standard to be applied in reviewing the sufficiency of the

evidence to support a criminal conviction was “‘whether

the record evidence could reasonably support a finding of

guilt beyond a reasonable doubt.” 7; ichnell, 287 Md. at

717, 415 A.2d 830 (quoting Jackson v. Virginia, 443 U.S.

307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979)).

This standard does not require a court to “‘ask itself

whether it believes that the evidence at the trial established

guilt beyond a reasonable doubt”: rather, the standard to

apply is “‘whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt.’” Jackson vy. Virginia, supra,

443 U.S. at 318-19, 99 S.Ct. at 2788-89 (emphasis in

original). We recently restated this standard of review in

these terms: ““[T]he constitutional standard of review is

“whether after considering the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.””” Wilson v. State, supra, 319 Md. at

535, 573 A.2d 831 (quoting West v. State, supra, 312 Md.

at 207, 539 A.2d 231). In this regard, under Maryland

Rule 8-131(c), we defer to the factual findings of the trial

judge in a nonjury case, unless they are Clearly erroneous,

giving due regard to the opportunity of the trial judge to

observe the demeanor of the witnesses and to assess their

credibility. These principles of appellate review of

criminal convictions are applicable in all cases, including

those involving circumstantial evidence. Wilson v. State,

supra, 319 Md. at 535-37, 573 A.2d 831.

Taking into account the circumstantial nature of much

of the evidence against Wiggins, and considering all of the

evidence in the case in a light most favorable to the State,

Ok re i me Ete he Mm a a oe

PO te Wil Ae tk Pl MD a

we conclude that Judge Hinkel, as trier of fact, rationally

determined that Wiggins was the perpetrator of the

offenses and that he committed the crimes on September

15. He considered but rejected Wiggins’s argument that

the circumstances, taken together, demonstrated a

reasonable hypothesis of his innocence. By his express

factual findings, as previously set forth, Judge Hinkel did

not credit any of Wiggins’s evidence that the robbery and

murder were committed at a time subsequent to his theft of

the victim’s car and other personal property. That the

expert witnesses were either unable to agree, or differed as

to the time of death, does not render Clearly erroneous

Judge Hinkel’s ultimate finding that Wiggins robbed and

murdered the victim on September 15.

Br. in Opp. App. 1 1a-14a.

Where the issue is whether there was sufficient evidence

to support a criminal conviction, Jackson v. Virginia, 443 U.S.

307 (1979), is the guiding Supreme Court precedent. Jackson

teaches that “the critical inquiry on review of the sufficiency of

the evidence to support a criminal conviction. . . [is] to

determine whether the record evidence could reasonably

support a finding of guilt beyond a reasonable doubt.” Jd. at

318. “[T]his inquiry does not require a court to ‘ask itself

whether it believes that the evidence at trial established guilt

beyond a reasonable doubt.”” Jd. at 318-19 (quoting Woodby

v. INS, 385 U.S. 276, 282 (1966)). “Instead, the relevant

question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.” Jd. at 319.

The standard delineated in Jackson “gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Jd Having

found a defendant guilty of the crime charged, “the factfinder’s

role as weigher of the evidence is preserved through a legal

conclus'on that upon judicial review all of the evidence is to be

considered in the light most favorable to the prosecution.” Jd.

As this Court subsequently explained in Wright v. West, 505

U.S. 277 (1992):

In Jackson, we emphasized repeatedly the deference

owed to the trier of fact and, correspondingly, the sharply

limited nature of constitutional sufficiency review. We

said that “all of the evidence is to be considered in the

light most favorable to the prosecution,” 443 U.S. at 319

(emphasis in original); that the prosecution need not

affirmatively “rule out every hypothesis except that of

guilt,” id., at 326; and that a reviewing court “faced with

a record of historical facts that supports conflicting

inferences must presume-even if it does not affirmatively

appear in the record—that the trier of fact resolved any such

conflicts in favor of the prosecution, and must defer to that

resolution,” id.

Wright v. West, 505 U.S. at 296-97 (Thomas, J.) (parallel

citations omitted).

In affirming Judge Hinkel’s decision finding Wiggins

guilty of murder, the Maryland Court of Appeals followed the

dictates of Jackson v. Virginia and Wright v. West. The court

did not reassess the credibility of witnesses, resolve conflicts in

the testimony, or reweigh evidence. The court viewed the

evidence of record in the light most favorable to the

prosecution and let stand the inferences that Judge Hinkel drew

from the evidence before him.

The same cannot be said of the federal district court on

habeas review. This the Fourth Circuit recognized.

The evidence adduced at trial showed that Wiggins was

one of the last people to see the victim alive and that he and the

victim were acquainted. Wiggins had no work-related reason

to remain at the apartment complex where the victim lived

beyond quitting time, yet he did so and even went so far as to

try and justify his presence by telling his employer that he had

moved some sheetrock to the vicinity of the victim’s apartment.

LES RA TE tt ale I na ciel

A EB are PEN, i lee OE Bs Same ra. to ~a

hts ae 66 Putin

Wiggins also knew what car belonged to the victim, and his

story about how he came into possession of the car on

September 16 was obviously false. Wiggins was in possession

of the victim’s car and other personal property on the night of

September 15, the last date that the victim marked television

programs in her TV Guide.

Given the evidence and Judge Hinkel’s reasoning, the

Fourth Circuit properly decided “that the Maryland Court of

Appeals’ decision was not only at least minimally consistent

with the record of facts found by the trial judge and thus was

not unreasonable within the meaning of § 2254(d), it was fully

supported by the record.” Cert. App. 17a. In his effort to

persuade this Court otherwise, Wiggins repeats the errors

committed by the district court, misreads this Court’s Jackson

decision, relies in part on unreported nonprecedential lower

court caselaw, and ultimately states no basis for further review

of his case by this Court.

Il.

THE MARYLAND COURT OF APPEALS’

DECISION REJECTING WIGGINS’S CLAIM

THAT SENTENCING COUNSEL RENDERED

INEFFECTIVE ASSISTANCE BY NOT

DEVELOPING A CASE IN MITIGATION DOES

NOT INVOLVE AN UNREASONABLE

APPLICATION OF CLEARLY ESTABLISHED

PRECEDENT OF THIS COURT.

Wiggins would have this Court conclude that the Fourth

Circuit’s decision regarding the claim of ineffective assistance

of sentencing counsel conflicts with Williams v. Ti aylor and the

prevailing law in other circuits. What occurred in Wiggins’s

case is not analogous to what transpired in Williams, and on de

novo review the Maryland Court of Appeals did not

unreasonably apply Strickland v. Washington in affirming the

lower court’s decision rejecting Wiggins’s ineffectiveness

claim. The Fourth Circuit’s decision to like effect does not

warrant further consideration by this Court.

Respecting Wiggins’s claim that counsel inadequately

investigated and presented mitigating evidence, the Maryland

Court of Appeals said in part:

In preparing and presenting appellant’s case to the jury

at sentencing, trial counsel made a deliberate, tactical

decision to concentrate their effort at convincing the jury

that appellant was not a principal in the killing of Ms.

Lacs, or at least at raising a reasonable doubt in that

regard. They were, in effect, striving for “two bites at the

apple.” Notwithstanding that the jury would be, and was,

instructed that appellant had been convicted of the crime,

the jury still was required to make its own determination,

unanimously and beyond a reasonable doubt, that appellant

was the actual killer, and, given the entirely circumstantial

nature of the State’s evidence and the fact that there was

some exculpatory evidence, counsel believed that

appellant’s best hope of escaping the death penalty was for

one or more jurors to entertain a reasonable doubt as to his

criminal agency.

Counsel were aware that appellant had a most

unfortunate childhood. Mr. Schlaich had available to him

not only the pre-sentence investigation report prepared by

the Division of Parole and Probation, which included some

of appellant’s social history, but also more detailed social

service records that recorded incidences of physical and

sexual abuse, an alcoholic mother, placements in foster

care, and borderline retardation. He was aware that the

jury could regard that background as a mitigating factor.

Indeed, as noted, one or more jurors did find appellant’s

“background” to be a mitigating factor, although not

sufficient to outweigh the aggravating factor that they

found. Mr. Schlaich understood that some lawyers use

what he regarded as a “shotgun approach,” attacking

everything and hoping that “something sticks.” He was

not of that view, however, preferring to concentrate his

defense. He did not, therefore, have any detailed

background reports prepared, although funds may have

been available for that purpose. He expressed some

concern that that kind of information might prove

counterproductive.

Cert. App. 121a-122a. The remainder of the state appellate

court's reasoning can be found at Cert. App. 122a-127a. What

bears repeating here is the following:

Counsel made a reasoned choice to proceed with what they

thought was their best defense. They knew that there

would be at least one mitigating factor--the uncontested

fact that appellant had not previously been convicted of a

violent crime--should the jury not credit their attack on

criminal agency. It was not unreasonable for them to

choose not to distract from their principal defense with

evidence of appellant’s unfortunate childhood. As Mr.

Schlaich noted, the dysfunctional and abused childhood

defense is not always successful; judges and juries have

condemned to death defendants with equally tragic

childhoods.

Cert. App. 126a.

The Court of Appeals’ ruling withstands scrutiny under 28

U.S.C. § 2254(d). As this Court explained in Bell v. Cone, 122

S. Ct. 1843, 1852 (2002), “under § 2254(d)(1), it is not enough

to convince a federal habeas court that, in its independent

judgment, the state-court decision applied Strickland

incorrectly.” The habeas petitioner “must show that the [state

court] applied Strickland to the facts of his case in an

objectively unreasonable manner.” /d.

At Wiggins’s post conviction hearing, sentencing counsel

Carl Schlaich explained during direct examination that

“basically what we did in mitigation was attempt to retry the

factual case and try to convince a jury that the State’s case on

principal issue was just not there.” J.A. 1191. Support for the

conclusion that the defense case at sentencing was the product

of strategic planning can also be found in Mr. Schlaich’s cross-

examination testimony, J.A. 1199, 1219-20, and in counsel’s

remarks in advance of and during sentencing when seeking

bifurcation of the sentencing proceeding. J.A. 555-65, 955-56,

964.

The record also amply supports the Maryland court’s

rejection of Wiggins’s claims in that court that counsel made

no effort to develop a case in mitigation and that counsel did

not understand the role mitigation plays in capital cases. Mr.

Schlaich’s answers to questions posed by Wiggins’s counsel at

Wiggins’s post conviction hearing are instructive in this regard:

Q But you were aware that the public defender had

hired social workers to do work-ups on social histories?

A Yes.

Q Like the one that is before you, PC-2 [, the Hans

Selvog Report]?

A Yes.

* - *

Q But you knew that Mr. Wiggins, Kevin Wiggins,

had been removed from his natural mother as a result of a

finding of neglect and abuse when he was six years old, is

that correct?

A | believe that we tracked all of that down.

Q You got the Social Service records?

A That is what I recall.

Q That was in the Social Service records?

A Yes.

Q So you knew that?

A Yes.

Q You also knew that there were reports of sexual

abuse at one of his foster homes?

A Yes.

Q Okay. You also knew that he had had his hands

burned as a child as a result of his mother’s abuse of him?

A Yes.

Q You also knew about homosexual overtures made

toward him by his Job Corp supervisor?

A Yes.

Q And you also knew that he was borderline mentally

retarded?

Q You knew all --

A At least I knew that as it was reported in other

people’s reports, yes.

* 7 -

Q Well, do you know at least that low intelligence

can be a mitigating factor in a capital case?

A Sure.

Q Do you know that abusive family background can

be a mitigating factor?

A Yes.

Q Do you know that sex abuse can be a mitigating

factor in a capital case?

A Yes.

J.A. 1196-99; see also J.A. 1214-17 (testimony regarding

mitigation evidence Mr. Schlaich produced during prior

representation of capital defendant Al Doering).

The Maryland Court of Appeals also reasonably

rejected Wiggins’s suggestion that counsel’s Strategy at

sentencing was unreasonable. “(E]vidence of a defendant’s

mental impairment” or history of abuse “‘may diminish his

blameworthiness for his crime even as it indicates that there is

a probability that he will be dangerous in the future.’” Barnes

v. Thompson, 58 F.3d 971, 980-81 (4th Cir.) (quoting Penry v.

Lynaugh, 492 U.S. 302, 324 (1989)), cert. denied sub nom.

Barnes v. Netherland, 516 U.S. 972 (1995). Here, evidence of

mental impairment and a history of abuse could well have

undercut the defense that Wiggins did not kill Mrs. Lacs by

refuting the defense’s premise, argued during closing to the

jury, J.A. 1024-25, that Wiggins was not the type of person to

have committed the murder. Cf. Burger v. Kemp, 483 U.S. at

793-95 (recognizing that evidence developed after sentencing

was “by no means uniformly helpful” and that it also was “at

odds” with strategy pursued).

Moreover, not only was it reasonable for counsel to not

present the type of mitigating evidence that Hans Selvog

produced after sentencing, with the benefit of hindsight, it was

reasonable for counsel to have pressed the defense that they

did. Counsel had a client who maintained throughout the

proceedings, in both unsolicited and solicited form, that he did

not murder Mrs. Lacs. J.A. 550, 573, 1038-39. Counsel had a

new forensic expert for the sentencing hearing in the person of

Dr. Silvia O. Comparini. J.A. 860-903. That the defense of not

guilty had previously failed to persuade a single factfinder did

not foreclose the possibility that one or more of the twelve new

factfinders would view the evidence differently. See Br. in

Opp. App. 33a-38a (dissenting opinion in which two members

of the Court of Appeals on direct review concluded, at Br. in

Opp. App. 33a, that “the evidence at the sentencing hearing

was insufficient for the jury to find, beyond a reasonable doubt,

that Kevin Wiggins was a principal in the first degree in the

murder of Florence Lacs”).

The Fourth Circuit, in finding that the Maryland Court of

Appeals’ decision survived scrutiny under 28 U.S.C. § 2254(d),

correctly recognized that the circumstances of Wiggins’s case

were sufficiently dissimilar from those that obtained in

Williams v. Taylor so as to render the result there inappropriate

here. Counsel in Williams was faced with a client who had

confessed guilt. Offering evidence in mitigation did not,

therefore, require presentation of inconsistent defenses.

Moreover, offering evidence in mitigation in Williams would

have enabled counsel, who admitted an inability to do so, to

come up with reasons to spare his client’s life. In the case at

bar, Wiggins maintained his innocence of Mrs. Lacs’s murder

throughout, and counsel did have credible arguments to make

when arguing that the death penalty was not warranted.

Williams, of course, is not this Court’s last word on

ineffectiveness claims. In Beil v. Cone, 122 S. Ct. at 1854, this

Court reiterated that it had

cautioned in Strickland that a court must indulge a “strong

presumption” that counsel’s conduct falls within the wide

range of reasonable professional assistance because it is all

too easy to conclude that a particular act or omission of

counsel was unreasonable in the harsh light of hindsight.

In the case at bar, Wiggins would have this Court ignore

Strickland’ s admonition. The Fourth Circuit correctly declined

to do so, Cert. Pet. 23a, and, notwithstanding Wiggins’s

protestations to the contrary, there is no need for this Court to

consider the matter further.

CONCLUSION

For the foregoing reasons, Respondents respectfully

request that the petitioner for writ of certiorari filed herein be

denied.

Respectfully submitted,

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

GARY E. BaIR*

Solicitor General

ANN N. BOSSE

Assistant Attorney General

Counsel for Respondents

* Counsel of Record

October, 2002

APPENDIX

CONTENTS OF APPENDIX

Page

Opinion of the Court of Appeals of Maryland

filed November 8, 1991, Kevin Wiggins

v. State of Maryland, No. 139, Sept. Term, 1989 ..... la

IN F APP F YLAND

No. 139

September Term, 1989

KEVIN WIGGINS

STATE OF MARYLAND

Murphy, C.J.

Eldridge

* Cole

Rodowsky

McAuliffe

Chasanow

Smith, Marvin H.

(retired, specially assigned),

JJ.

Opinion by Murphy, C.J.

Eldridge and Cole, JJ., dissent

Filed: November 8, 1991.

*Cole, J., now retired, participated in the hearing and

conference of this case while an active member of this Court;

after being recalled pursuant to the Constitution, Art. IV, Sec.

3A, he also participated in the decision and adoption of this

opinion.

Kevin Wiggins was convicted at a nonjury trial in the

Circuit Court for Baltimore County (Hinkel, J.) of willful,

deliberate, and premeditated murder, robbery, and two counts

of theft. On October 18, 1989, following a jury sentencing

hearing, Wiggins was determined to be a principal in the first

degree on the murder count. He was sentenced to death in

pursuance of the State’s notice that it sought that penalty, as

authorized by Maryland Code (1987 Repl.Vol.), Art. 27, §

412(b).

On appeal from these judgments, Wiggins maintains

that he is entitled to a new trial as to his guilt of these offenses

because (1) the evidence was insufficient to establish that he

was the perpetrator of the crimes and (2) the trial court erred in

denying his motion for a new trial. Wiggins also urges, for

twelve separate reasons, that the imposition of the death

penalty was improper and a new sentencing hearing is therefore

required.

The Tnal

Florence Lacs, the seventy-seven-year-old murder

victim, resided at the Clark Manor Apartments in Woodlawn,

Maryland. On Saturday afternoon, September 17, 1988, at

approximately 3:50 p.m., her dead body was found in the

bathtub of her apartment. She was lying on her side,

half-covered by cloudy water of a slightly greenish hue. She

was fully clothed in a blue skirt, a white blouse, and white

beads. She was not wearing underpants and her skirt was

pulled up to her waist in the back. No shoes were on the body,

but one bedroom slipper was floating in the bathtub (its mate

was lying in the hallway of her apartment).

The evidence at trial showed that on Thursday,

September 15, the victim drove Mary Elgert to a luncheon.

Elgert testified that the victim was then wearing a light blue

skirt, white blouse, and white shoes. She said that the victim

drove her home from the luncheon at 4 p.m. that day.

Edith Vassar was also in attendance at the luncheon.

She testified that on the day after the luncheon, Friday,

September 16, at approximately 10 a.m., the victim phoned her

and they discussed an event that occurred at the luncheon the

previous day.

Elizabeth Lane was present at the luncheon on

September 15. She recalled driving by the victim’s apartment

complex the following day at 4 p.m. and noted that her car was

not in the parking lot. When the victim failed to attend a

scheduled card game at Lane’s house on Saturday, September

17, the police were contacted at 2 p.m. and Ms. Lacs was

reported missing. Lane told the police that she had last seen

the victim on September 15 and that she was wearing a red

dress at that time.

In the afternoon of Saturday, September 17, the

apartment manager, Joseph Thiel, was alerted by the police and

he entered the victim’s apartment. He testified that the

deadbolt lock on the door was unlocked, but that the knob lock

was locked. He discovered the victim lying dead in the

bathtub. The police arrived shortly thereafter. They found no

evidence of forced entry into the apartment, but it had been

partially ransacked. Several drawers had been removed from

various locations within the living and dining rooms and were

found on the floor. The night stand drawer was pulled out and

its contents were in disarray. The headboard of the bed had

two built-in enclosures; they stood open and their contents

were likewise in disarray. A drawer from the buffet was on the

bed with items strewn all around it. The bed was mussed, with

the mattress sitting askew on the box spring; the pillow cases

were missing. A damp cloth was lying on the dining room

table and a damp towel was lying on the victim’s bed. In the

kitchen, the window was slightly open but the screen was

intact.. The cabinets were open and some bottles of household

cleaner were lying on the floor. The tap was running in the

kitchen sink. In the bathroom on the sink were a spray can of

insecticide, a bottle of household cleaner and a bottle of

dishwashing liquid.

On the floor inside the front door of the apartment was

a baseball cap which displayed a Ryder Rental Truck logo on

its bill. On the coffee table in front of the sofa were two T.V.

Guides, one of which was dated from September 10 to 16; the

evening programs had been marked by pen through September

15; and a bookmark had been inserted at the page delineating

the September 15 programs. The other T.V. Guide was for

programs from September 17 to 23; it was unopened.

Seven latent fingerprints were recovered from inside the

entrance door of the victim’s apartment, the archway wall of

the kitchen, and the doorjamb leading into the bathroom. The

police also processed what appeared to be wet wipe marks on

the front face of an end-table drawer found on the living room

sofa. These marks, however, had no comparison value.

Similar markings were observed on a cleaning bottle in the

bathroom. The seven latent prints were compared to Wiggins’s

prints and found not to match. Two of the prints were

identified as being made by one of the police officers on the

scene. The other five prints were not identified.

Paramedics arrived on the scene and pronounced the

victim dead at 3:50 p.m. At that time, the paramedic noted that

there was expiratory cyanosis about the victim’s lips and face, -

that her pupils were dilated, and that her arm and jaw were

rigid. She was removed from the bathtub during the evening of

Saturday, September 17, in the presence of Dr. Stanley

Felsenberg, the Deputy State Medical Examiner, who arrived

on the scene at 9 p.m. The body was transported to the Medical

Examiner’s office in Baltimore, and tagged and refri gerated at

approximately midnight.

Dr. Margarita Korell, Assistant State Medical

Examiner, performed an autopsy on the body on the morning

of September 18. She concluded that the cause of death was

drowning and that the manner of death was homicide. She

found a contusion on the dorsal surface of the left hand and a

tiny hemorrhage in the neck area. She testified that these

injuries were produced by “some external force” and were

consistent with a struggle prior to the victim’s death. Asked

whether she could state “the minimum amount of time Ms.

Lacs had been deceased,” Dr. Korell responded that there was

no way that she could say for certain when the victim died.

She “guessed” that it could have been more or less than

forty-eight hours, depending upon a number of factors. Upon

objection, the court struck Dr. Korell’s testimony “with respect

to the time of death.” It permitted in evidence, however, that

Dr. Korell was unable to state, with a reasonable degree of

medical certainty or probability, “what the maximum period of

time was.”

Chianti Thomas, age twelve at the time of trial, testified

that on September 15, at approximately 4:30 or 5 p.m., she was

visiting with Chantell Greenwood and Shanita Patterson at an

apartment next to the victim’s apartment. When they were

leaving the apartment, Shanita had difficulty in locking her

apartment door and sought assistance from the victim. While

the victim was attempting to help lock the door, a man, later

identified as Wiggins, volunteered his assistance. When the

telephone rang inside Shanita’s apartment, she and Chantel

went to answer it. While they were gone, Chianti heard

Wiggins thank the victim for watching some sheetrock for him

and heard the victim converse briefly with Wiggins. The

evidence disclosed that this conversation occurred at

approximately 5 or 5:30 p.m. Thereafter, the girls left the

apartment building. Several weeks later, Chianti was shown

photographs of six men. She selected Wiggins’s photograph as

the person that “looked the ciosest to the man that was in the

building.” Chianti was unable to identify Wiggins at the trial.

Robert Weinberg, a contractor, testified that he was

performing work at the Clark Manor Apartments at the time of

the victim’s death. He said that he had employed Wiggins on

September 14 and that on September 15, while Wiggins was

Carrying equipment from the apartment to a truck, the victim

called out of her apartment window and expressed concern to

Wiggins that the truck might block her car. Weinberg

remembered assuring the victim that the truck did not block her

car. Weinberg released Wiggins from work on September 15,

sometime between 4 and 4:45 p.m. He said that approximately

twenty-five to thirty-five minutes thereafter, Wiggins told him

that he had moved some sheetrock from one side of the

building to another, a task that Weinberg had not asked him to

perform. Weinberg testified that it would have taken only two

minutes for Wiggins to move the sheetrock. Weinberg also

testified that Wiggins appeared for work on Friday, September

16, but left early, stating that he was being evicted that day.

The evidence disclosed that on the evening of

September 15, at about 7:45 p.m., Wiggins, driving the victim’s

orange Chevette, went to the home of his girl friend, Geraldine

Armstrong. According to her testimony, they went shopping

and made several purchases, using the victim’s credit cards,

which Wiggins told Armstrong belonged to his aunt.

Armstrong said that she signed the victim’s name to the charge

slips because Wiggins said his handwriting was bad. The

following day, September 16, Wiggins drove Armstrong to

work in the victim’s car, after which they again went shopping,

using the victim’s credit cards to purchase additional items,

including a diamond ring at a J.C. Penney store, for which they

received a certificate. Wiggins, she said, gave a false name and

address for the certificate. On Saturday, September 17,

Wiggins and Armstrong pawned a ring which Wiggins told

Armstrong he had found in the car. The ring belonged to the

victim.

On the evening of September 21, Wiggins and

Armstrong were arrested by the police while driving in the

victim’s vehicle. At that time, Wiggins told the police that

Armstrong “didn’t have anything to do with this.” In a

Statement to police, Wiggins claimed that he found the victim’s

car with the keys in it on a restaurant parking lot on Friday,

September 16; that the credit cards were in a bag on the floor

of the car; and that the ring was also found in the car. Wiggins

admitted using the credit cards and pawning the ring. He

stipulated with the State that he used the victim’s credit cards

to make several purchases on the evening of Thursday,

September 15.

At the time of Wiggins’s arrest, the police seized a

rubber glove from a pocket in his trousers. There was no

evidence of an association between the glove and the various

liquids in the victim’s bathroom.

The State presented testimony from Christopher Turner,

who claimed to have met Wiggins during his pretrial

incarceration in October, 1988. Turner, who has a history of

serious mental illness and drug abuse, testified that Wiggins

told him that he had stolen a car and killed the lady to whom

the car belonged. Turner said that Wiggins admitted that he

had kicked the lady and beaten her, and then drowned her in the

bathroom, and had put something like lye or ammonia in the

water. According to Turner, Wiggins said that he had taken the

lady’s purse, credit cards, and some money, after which he

drove away in her car. Turner also testified that Wiggins took

a ring from the victim’s finger; that he used the credit cards to

buy clothes; and that he also permitted his girlfriend to use the

credit cards.

John McElroy testified that he met Wiggins in the

county detention center and that Wiggins asked him whether,

at his trial, the authorities could use a hair sample against him.

McElroy said that Wiggins admitted that he had hit a lady in

the back of the head and put her in the bathtub of her house,

drowned her, and then took $15,000 from the house. McElroy

also testified that Wiggins told him that he had a girlfriend

named Geraldine.

The defense presented the testimony of Gregory

Kauffman, a physician with expertise in the field of forensic

pathology. He testified that there was nothing in the autopsy

report that made drowning seem a likely cause of the victim’s

death. He said that drowning seemed unlikely because the

body showed no evidence of a struggle. He agreed that the

manner of death was homicide. As to the time of death, Dr.

Kauffman said that when the victim’s body was first

photographed at 9 p.m. on Saturday, September 17, she had

been dead a maximum of eighteen hours. He reasoned that

there were no decompositional changes at that time, which

would have been evident in bodies that had been dead longer

than eighteen hours. Dr. Kauffman referred especially to the

inside and back of the left arm. In these areas, he said, there

was lividity, or settling of the blood, and that decompositional

changes occur first in areas where the blood has settled. He

noted the absence of swelling or bloating, and the absence of

marbling, and skin slippage. Dr. Kauffman further opined that

at the time the autopsy was performed, rigor mortis was fully

developed, and that it had been broken. In this regard, he said

that rigor mortis becomes fully developed around eight to

twelve hours after death. Dr. Kauffman noted that the body

was refrigerated at the Medical Examiner’s office shortly

before midnight; and he believed that, at that time, the victim

had been dead twenty-one hours at the most.

After hearing all of the evidence, Judge Hinkel found

Wiggins guilty of first- degree murder, robbery, and theft. He

found as a fact that Wiggins worked at the Clark Manor

Apartment complex and knew the victim and which car she

owned. He further found that it was Wiggins that Chianti

Thomas saw outside of the victim’s apartment on September

15, and that Wiggins was in possession of the victim’s

automobile, credit cards, and ring later on that day. He

concluded that the ransacking of the victim’s apartment took

place on September 15, between the time that Wiggins was

released from work and the time that he arrived at the home of

Geraldine Armstrong in the victim’s car. The court disbelieved

Wiggins’s statement to the police that he found the car in a

restaurant parking lot on September 16. It found as a fact that

the credit cards and car keys were taken from the apartment

after it had been ransacked.

Judge Hinkel determined that Ms. Vassar was mistaken

when she said that she had spoken to the victim on the morning

of September 16, and that Ms. Elgert was mistaken when she

told the police that the victim was wearing a red dress on

Thursday, September 15. The court believed that the victim

was wearing a blue skirt and white blouse on that day, this

being the clothes she was wearing when she was found in the

bathtub. The court did not credit Dr. Gregory Kauffman’s

testimony as to the time of death; rather, it was persuaded that

Wiggins murdered the victim on September 15 and that the

killing was done willfully, deliberately, and with premeditation

and in the course of a robbery. In so concluding, Judge Hinkel

stated that he did not believe the testimony of either John

McElroy or Christopher Turner, each of whom claimed that

Wiggins admitted murdering and robbing the victim.

As Wiggins elected to be sentenced by a jury, much of

the testimony adduced at the trial was repeated. There were,

however, some differences between the evidence offered at trial

and at the sentencing proceeding.

Dr. Korell told the jury that the victim died of drowning

and that the manner of death was homicide. She testified that

the victim sustained a contusion of the left hand and that it was

a traumatic defensive-type injury. She made no mention of the

hemorrhage in the victim’s neck area. As to the time of death,

Dr. Korell said that taking into account a number of factors,

including that the body was refrigerated the entire night prior

to the autesy, she could not pinpoint the time of death. She

estimated that the victim “could have died 24 or 48 hours

before she was photographed at the crime scene at 9 p.m. on

September 17,” or earlier if, as stated by the paramedic, rigor

mortis was present at 4 p.m. on that day.

Dr. Ann Dixon, the Deputy Chief State Medical

Examiner, testified that the victim died at least twenty-four

hours before Dr. Felsenberg examined the body at the crime

scene and that death could have occurred thirty-six or

forty-eight hours prior to that examination, or even farther back

than that.

Chantell Greenwood testified that the victim was

wearing a red pleated skirt and a long-sleeved white blouse

when she last saw her on September 15 in the apartment

hallway. She said that on that date, at approximately 5:40 p.m.,

she heard the victim and a painter exchange a few words in the

hallway. Chianti Thomas reiterated her testimony about her

visit to Shanita, the victim’s neighbor, on September 15. She

lla

told the jury that the girls had uifficulty locking the door

behind them; that they enlisted the help of the victim; that a

man appeared on the scene at that time; and that she observed

a brief exchange of words between the victim and the man she

later identified as Wiggins. Thus, Chianti’s trial testimony

differed from her testimony at sentencing in her identification

of Wiggins. Before the trial, Chianti had selected Wig vins’s

photograph from a group of photographs that the police had

shown to her. She was, however, unable to make an in-court

identification. At the sentencing hearing, however, when the

prosecutor asked Chianti, “[a]nd whose picture did you pick,”

she made an in-court identification of Wiggins.

Dr. Silvia Camparini, an expert pathologist, testified for

the defense that the body had not been dead more than

twenty-four hours when Dr. Korell performed the autopsy at 9

a.m. on September 18.

In its sentencing determination, the jury concluded

beyond a reasonable doubt that Wiggins was a principal in the

first degree to the murder of Florence Lacs, and that one

aggravating circumstance had been proven, namely, that

Wiggins committed the murder in the course of robbing the

victim. The jury unanimously found by a preponderance of the

evidence that one mitigating circumstance existed, namely, that

Wiggins had not been previously convicted of a crime of

violence. An additional mitigating circumstance was found by

one or more of the jurors, but fewer than all twelve, namely,

Wiggins’s “background.” The jury unanimously found that the

State proved by a preponderance of the evidence that the

proven aggravating circumstance outweighed the mitigating

circumstances and it imposed the death penalty.

Il.

Wiggins maintains that because his convictions rest

12a

solely upon circumstantial evidence, they cannot be sustained

unless they are inconsistent with any reasonable hypothesis of

innocence. For this proposition, he :elies upon Wilson v. State,

319 Md. 530, 535-37, 573 A.2d 831 (1990) and West v. State,

312 Md. 197, 207-13, 539 A.2d 231 (1988). He urges that

because the circumstances permit a reasonable hypothesis of

his innocence of robbery and murder, the evidence is not

legally sufficient to establish that he was the perpetrator of

those offenses. In this regard, Wiggins postulates that a

substantial number of hours intervened between the time that

he came into possession of the victim’s property and the time

that she died. He contends that the State’s evidence does not

preclude the reasonable hypothesis that he entered the victim’s

apartment and stole her ring, car keys, and credit cards from her

purse while she was attempting to help her neighbor lock her

door. Wiggins suggests that he could have easily slipped into

the victim’s apartment and taken these items from her purse,

which could have been resting just inside the door, or otherwise

in plain view. He readily acknowledges that the State proved

a legally sufficient case for a theft conviction, based on his

subsequent possession of the victim’s property and-on his

presence at the crime scene; but he argues that this alone does

not prove that he committed robbery at the time he came into

possession of the victim’s property. Nor, he says, does it

support an inference that he is guilty of murder, especially in

view of the State’s failure to establish that the victim died on

September 15. As to this, Wiggins invites attention to Dr.

Kauffman’s testimony that the victim did not die on September

15 but more likely on September 17. Moreover, Wiggins

points to other evidence that mitigates against his guilt, namely,

the testimony of the victim’s two friends, one of whom testified

that she received a telephone call from the victim on Friday

morning, September 16, and the other who described the victim

as wearing a red dress on Thursday afternoon, September 15.

This evidence, according to Wiggins, highlights the State’s

failure to prove that the victim was dead before or at about the

l3a

same time that he came into possession of her car and other

belongings on September 15.

In Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980),

an appeal in a death penalty case, we stated that the standard to

be applied in reviewing the sufficiency of the evidence to

support a criminal conviction was “ ‘whether the record

evidence could reasonably support a finding of guilt beyond a

reasonable doubt.” Tichnell, 287 Md. at 717 (quoting Jackson

v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979)). This standard does not require a court to ““‘ask itself

whether it believes that the evidence at the trial established

guilt beyond a reasonable doubt””; rather, the standard to apply

is “‘whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.”” Jackson v. Virginia, supra, 443 U.S. at

318-19 (emphasis in original). We recently restated this

standard of review in these terms: ““[T]he constitutional

standard of review is “whether after considering the evidence

in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.”’” Wilson v. State, supra, 319 Md.

at 535 (quoting West v. State, supra; 312 Md. at 207). In this

regard, under Maryland Rule 8-131(c), we defer to the factual

findings of the trial judge in a nonjury case, unless they are

clearly erroneous, giving due regard to the opportunity of the

trial judge to observe the demeanor of the witnesses and to

assess their credibility. These principles of appellate review of

criminal convictions are applicable in all cases, including those

involving circumstantial evidence. Wilson v. State, supra, 319

Md. at 535-37.

Taking into account the circumstantial nature of much

of the evidence against Wiggins, and considering all of the

evidence in the case in a light most favorable to the State, we

l4a

conclude that Judge Hinkel, as trier of fact, rationally

determined that Wiggins was the perpetrator of the offenses

and that he committed the crimes on September 15. He

considered but rejected Wiggins’s argument that the

circumstances, taken together, demonstrated a reasonable

hypothesis of his innocence. By his express factual findings,

as previously set forth, Judge Hinkel did not credit any of

Wiggins’s evidence that the robbery and murder were

committed at a time subsequent to his theft of the victim’s car

and other personal property. That the expert witnesses were

either unable to agree, or differed us to the time of death, does

not render clearly erroneous Judge Hinkel’s ultimate finding

that Wiggins robbed and murdered the victim on September 15.

IV.

Wiggins contends that the trial court erred in denying

his motion for a new trial. He points out that evidence was

adduced at the hearing on the motion which disclosed that prior

to trial Dr. Korell told defense counsel that the victim died

from four to ten hours before her body was discovered on

September 17, and that the outside limit was twenty-four hours.

The evidence also showed that two days later, after Dr. Korell

had conferred with Dr. Ann Dixon, the Deputy State Chief

Medical Examiner, she told defense counsel that her opinion

had changed and that the time of death could have been

forty-eight hours before the body was discovered.

Wiggins notes that at the trial Dr. Korell testified that

she was unable, with reasonable medical certainty, to establish

the time of death. Wiggins next notes that Dr. Korell testified

at the sentencing hearing that the victim had been dead

twenty-four to forty-eight hours prior to 9 p.m. on September »

17.

On the basis of this evidence, Wiggins argues that Dr.

15a

Korell’s expert opinion at the sentencing hearing was newly

discovered evidence within the contemplation of Maryland

Rule 4-331(c), justifying the award of a new trial. He claims

that this opinion was clearly material and would have produced

an acquittal since the outside limit of her range established that

the victim was alive after he came into possession of her

property. According to Wiggins, had this testimony been

introduced at the trial, it would have been consistent with the

defense expert’s opinion as to the time of death and would have

exonerated Wiggins from guilt. In other words, Wiggins says

that had the evidence at trial included Dr. Korell’s revised

opinion, all of the medical evidence introduced at the trial

would have been consistent only with his innocence.

In a similar vein, Wiggins argues that Dr. Korell’s

“shifting opinions on the time of death” denied him a fair trial.

He says that “matters would have been different” if Dr.

Korell’s opinion at trial had been consistent with her opinion at

the sentencing hearing.

Assuming, arguendo, that Dr. Korell’s testimony at the

sentencing hearing amounted to newly discovered evidence, the

standard for determining whether a new trial should be granted

based upon that evidence is whether it may have produced a

different result, i.e., that “there was a substantial or significant

possibility that the verdict of the trier of fact would have been

affected.” See Yorke v. State, 315 Md. 578, 588, 556 A.2d 230

(1989).

As earlier indicated, in rendering his verdict at the trial,

Judge Hinkel stated:

“Now, a lot has been made over the exact time

of death. I don’t know the exact time of death.

I am persuaded, however, from all the evidence

that the death of Mrs. Lacs did not occur

l6a

sometime between 9 p.m. on September 17th

and 3:00 a.m. on 9-17, which would be the 18

hour period that was testified to by Dr.

Kauffman. I am persuaded that it occurred on

Thursday the fifteenth of September.”

In denying the motion for a new trial, the Judge Hinkel stated:

“But there’s so many other facts in this case and

there’s nothing certain about medical testimony

of this sort. The state and the defense knew that

the medical profession is not equipped or

prepared to state with any degree of certainty,

not even probability, it appears, as to matters of

this nature. But all the other evidence in this

case certainly was sufficient for me, at the

guilt/innocence stage, and for the jury in the

sentencing phase, to determine that Mr.

Wiggins was a principal in the first degree.”

It is thus readily apparent that the trial judge did not rely

upon Dr. Korell’s trial testimony with respect to the time of

death. Indeed, her estimate given at the tral, which she

characterized as a “guess,” was that the victim could have been

dead more or less than forty-eight hours when her body was

discovered. This testimony, upon Wiggins’s objection, was

stricken and thus not considered at the trial.

In denying Wiggins’s new trial motion, Judge Hinkel

recognized that expert testimony as to the time of death was

uncertain and that Wiggins was aware of this fact. Judge

Hinkel, as trier of fact, concluded that the claimed newly

discovered evidence would not have produced a different

result. In this regard, we note that, at the sentencing hearing,

Dr. Korell’s testimony was that Ms. Lacs could have been dead

twenty-four to forty-eight hours prior to 9 p.m. on September

17a

17 when she was photographed in the bathtub, or even earlier

on that day. Thus, her revised opinion, if introduced at the

trial, would have actually buttressed the State’s case. We hold

that Judge Hinkel did not abuse his discretion in denying the

new tnal motion.

Nor is there merit in Wiggins’s claim that he should be

granted a new trial because Dr. Korell’s changing testimony

rendered the trial fundamentally unfair. As the trial court

noted, and the record indicates, medical testimony regarding

time of death is fraught with uncertainty. Wiggins was aware

that Dr. Korell changed her opinion once prior to the trial, and

the defense had ample time to, and did, secure its own qualified

expert testimony on this matter. As the ambivalence of the

State’s expert witness was known to the defense, her opinion at

the sentencing hearing did not deprive Wiggins of a fair trial.

Accordingly, we find no merit in this argument.

Wiggins argues that he cannot be sentenced to death

because under Maryland Code (1987 Repl.Vol.), Art. 27, §

413(e)(1), the State failed to prove beyond a reasonable doubt

that he was a principal in the first degree. In response, the State

maintains that the evidence does not disclose the existence of

a second person in the commission of the crimes, and therefore

the jury properly concluded that Wiggins was a principal in the

first degree.

As we said in Stebbing v. State, 299 Md. 331, 371, 473

A.2d 903 (1984), eligibility for the death sentence is confined

to persons convicted of first degree murder as a principal in the

first degree, namely, by one who actually commits a crime,

either by his own hand, or by an inanimate agency, or by an

innocent human agent. Johnson v. State, 303 Md. 487, 510,

18a

495 A.2d 1 (1985).'

As already indicated, there was evidence which showed

that Wiggins was present near the victim’s apartment at the

approximate time of the crimes. The manner of the victim’s

death was homicide, and the circumstances plainly

demonstrated that the murder was premeditated. Under the

circumstances disclosed in the evidence, Wiggins’s possession

of the victim’s property shortly after she was robbed and

murdered support an inference that he was the perpetrator of

both the robbery and the murder.

There was no evidence that Wiggins was seen in

company with another person at the time of the offenses. In

this regard, Wiggins’s employer indicated that he had released

Wiggins from work at approximately 4:45 p.m., and that

Wiggins returned some twenty minutes later, reporting that he

had moved some sheetrock. As before, Wiggins was alone.

Shortly thereafter, when Wiggins arrived at his girlfriend’s

home, driving the victim’s car, he was again alone. There was

no other individual present, according to the evidence, during

the three-day period over which Wiggins and his girlfriend

used the victim’s credit cards to acquire various items of

property.

We have considered Wiggins’s arguments suggesting

the presence of a second perpetrator because of the unidentified

fingerprints found at the crime scene, as well as the Ryder

Rental Truck hat that was found on the floor just inside the

apartment door. As to the unidentified fingerprints, the State’s

A statutory exception to the perpetrator requirement in

death penalty cases is the provision that one who employs another

to kill is also a first degree principal. See Art. 27, § 413 (d) (7) and

§ 413 (e) (1).

19a

failure, after investigation, to ascertain the identity of these

prints does not support the existence of a second participant.

In this regard, the fingerprint experts were uncertain that the

unidentified prints were not those of the victim, inasmuch as

the prints taken from her body were of such poor quality. We

view this evidence as wholly inconclusive and not supportive

of a reasonable hypothesis that Wiggins may have acted in

concert with another person.

As to the hat, the police examined it for hair and fibers

but found only a few small lint fibers on its inside rim. The

police took the hat to two stores to see if they sold that type of

hat and found that neither did. At most, this evidence showed

that the State, after investigation, was unable to prove that

Wiggins owned the hat or that it belonged to someone else.

This evidence does not support a reasonable hypothesis that

another individual was present in the victim’s apartment at the

time of the crimes and that it was that other person, and not

himself, who actually killed the victim. Accordingly, we find

no error in the jury’s finding that Wiggins was a principal in

the first degree.

V1.

Prior to sentencing, the State moved in limine to

exclude evidence of its offer of a life sentence in exchange for

a guilty plea. Wiggins had indicated an intention to introduce

evidence of this offer during the sentencing hearing. The court

ruled that while the offer, if admitted in evidence, would

“mitigate[ | in favor of the defendant,” it was not admissible

before the sentencing authority as it would seriously cripple the

plea negotiation process in capital sentencing prosecutions.

Wiggins argues that the State’s plea offer was properly

admissible as mitigating evidence because, under Lockett v.

Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the

20a

sentencing authority in capital cases must be permitted to

consider any relevant mitigating factor, i.e., anything that might

serve as a basis for a sentence less than death. Specifically,

Wiggins says that the State’s offer, for whatever reason it was

made, demonstrated its belief that a life sentence was

appropriate in the case and had this been known to the

sentencing jury it would not have imposed the death sentence.

In Lockett, 438 U.S. at 605, the Supreme Court held

that

“the Eighth and Fourteenth Amendments

require that the sentencer, in all but the rarest

kind of capital case, not be precluded from

considering, as a mitigating factor, any aspect

of a defendant’s character or record and any of

the circumstances of the offense that the

defendant proffers as a basis for a sentence less

than death.”

(Emphasis in original; footnotes omitted.) Nothing in Lockett,

the Court said, “limits the traditional authority of the court to

exclude, as irrelevant, evidence not bearing on the defendant’s

character, prior record, or the circumstances of his offense.” Id.

at 605, n. 12, quoted in Johnson, supra, 303 Md. at 527-28.

We have said that the appropriateness of sentences other

than death may be considered by the sentencer as a mitigating

circumstance in a capital prosecution. See Hunt v. State, 321

Md. 387, 404, 583 A.2d 218 (1990); Doering v. State, 313 Md.

384, 545 A.2d 1281 (1988); Harris v. State, 312 Md. 225, 539

A.2d 637 (1988). In Hunt, the defendant did not seek timely

admission of evidence of his sentence for a handgun offense,

and his request to reopen his case to offer it was denied by the

trial judge. We held that the evidence would have been

admissible in Hunt’s case-in-chief, as evidence that “would aid

2la

the jury in assessing the legal and practical effect of a sentence

less than death,” 321 Md. at 404, but that the trial judge did not

abuse his discretion in denying the request to reopen. In Harris,

we held that evidence of the sentences imposed on the

defendant for a related robbery offense, where the robbery was

the statutory aggravating factor in a capital sentencing

proceeding, was admissible. We reasoned that the sentencer

might consider, as a mitigating factor, the fact that the

defendant had already been appropriately sentenced for that

crime. In Doering, we held that a defendant in a capital

sentencing proceeding may introduce relevant and competent

information regarding his ehgibility for parole in the event a

life sentence is imposed. We explained that the sentencer, in

seeking to determine the appropriateness of a life sentence,

would be aided by information correctly describing the legal

and practical effects of such a sentence, and that the existence

of an appropriate alternative sentence may be considered as a

relevant mitigating circumstance. Doering, 313 Md. at 412. In

these three cases, the factors with the potential to mitigate were

related to the actual amount of time the defendant was likely to

spend in prison in the event that the jury elected to impose a

life sentence; consequently, they constituted relevant

information for the jury to consider in determining the

appropriate disposition.

Evidence of a plea offer, on the other hand, is not an

appropriate factor to aid the jury in making its determination.

As Wiggins concedes, the State may have sought a guilty plea

to avoid the possibility of an acquittal in a case which involved

largely circumstantial evidence. This prosecutorial concern

would not, therefore, necessarily indicate that the State

considered a life sentence to be the appropriate punishment for

Wiggins’s crimes. In other words, as the State suggests, its

plea offer did not reflect on either the crime or the character of

the defendant; rather, it resulted after the State evaluated the

strength of its case and the concern that it had that the jury

22a

might not return a guilty verdict. Thus, the evidence of the plea

offer did not bear on the defendant’s character, prior record, or

the circumstances of the crime, and was not relevant mitigating

evidence. See Calhoun v. State, 297 Md. 563, 468 A.2d 45

(1983).

Vil.

Wiggins next contends that the trial court erred in

excluding from the consideration of the sentencing jury, as

relevant mitigating evidence, a three-volume collection of

documents detailing potentially capital cases where a sentence

less than death was imposed. He draws attention to Art. 27, §

414(e)(4), which requires this Court in every case where the

death sentence has been imposed to compare it to those

imposed “in similar cases” to insure that it is not excessive or

disproportionate, “considering both the crime and the

defendant.” Wiggins claims that sentence proportionality is an

appropriate consideration for the sentencing authority as well,

and that the proffered evidence should have been admitted for

its consideration. He claims that, lacking this information, the

sentencing jury did not have relevant information to make its

sentencing decision--information which, he says, is

traditionally relevant in determining the appropriate sentence

and which would have assisted a jury in determining the weight

to be given to aggravating factors in weighing them against

mitigating circumstances. In this regard, Wiggins says that had

the jury known of the frequency with which life imprisonment

is imposed in murder cases of a more extreme nature than his

own, it might well have determined to return a sentence less

than death.

In White v. State, 322 Md. 738, 589 A.2d 969 (1991),

we noted that proportionality review in capital sentencing cases

under Art. 27, § 414(e)(4) requires the review to be conducted

by this Court and not by the sentencing authority. We further

23a

noted that there is no federal constitutional requirement of

proportionality review in death penalty cases, citing Pulley v.

Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 79 L.Ed.2d 29

(1984). While we recognized that evidence proffered by a

defendant to establish the existence of a mitigating

circumstance should be generously viewed by the sentencer, we

also said that mitigating circumstances are “defendant specific”

and “incident specific” and that ordinarily the findings

regarding another person do not in any way tend to establish a

material fact beneficial to an entirely different individual.

White, supra, 322 Md. at 750; Johnson v. State, supra, 303

Md. at 528-29. For like reasons, we also find no merit in

Wiggins’s further argument that the trial court erred in

excluding from evidence a law review article chronicling a

study which, according to the author, uncovered 350 cases in

which a miscarriage of justice occurred in a potentially capital

case.

Vil.

Wiggins maintains that his right of allocution before the

sentencing jury was unduly restricted. Particularly, he argues

that after all of the evidence had been presented to the

sentencing authority, but before the court had given its

instruction to the jury, he sought to show, in allocution before

the jury, that he had been offered a life sentence in exchange

for a guilty plea but had rejected the State’s offer. In denying

the request, the court noted that allocution “is considered

evidence in the case for the purposes of the jury determining

what the sentence ought to be ... although that evidence is not

given ... under oath.” The court restricted Wiggins’s nght of

allocution for the same reasons which caused it to exclude the

same evidence at the sentencing hearing.

Wiggins argues that under Harris v. State, 306 Md. 344,

509 A.2d 120 (1986), he should have been permitted to

24a

allocute as he had requested. He claims that the substance of

the intended allocution was relevant because under Harris, id.

at 351, “allocution, unlike closing argument, is not limited to

the record in the case, inferences from material in the record,

and matters of common human experience.”

Although the custom predates the Maryland Rules, the

right of allocution is now provided to a defendant in a capital

case by Maryland Rule 4-343(d). The Rule provides, in

pertinent part, that “[bjefore sentence is determined, the court

shall afford the defendant the opportunity, personally and

through counsel, to make a statement.” In Harris, 306 Md. at

359, we said that a defendant who timely asserts his right to

allocute, and who provides an acceptable proffer, must be

afforded a fair opportunity to exercise this right. We did not,

however, circumscribe the broad and traditional discretion of

trial judges over the conduct of a criminal trial; rather, we

recognized that the trial court could, in its discretion, curtail

“allocution that is irrelevant or unreasonably protracted.” Id.

at 359. We conclude, for reasons earlier stated, that the State’s

offer of a plea agreement was not a proper matter of

consideration for the jury in deciding the appropriateness of a

death sentence.

IX.

Wiggins next urges that the trial court erred in denying

his motion for a bifurcated sentencing hearing. In this regard,

he moved that the sentencing proceeding be bifurcated by the

court so that the jury could first decide whether he was a

principal in the first degree and, if that issue was found in the

affirmative, a separate proceeding should then be held to

determine whether the aggravating circumstances outweighed

the mitigating circumstances and death was the appropriate

penalty. According to Wiggins, this is a fair and equitable

solution to problems “which arise from deciding, at the

25a

sentencing proceeding, both the issue of first degree principal

and the appropriate penalty.” Without bifurcation, Wiggins

argues that “there will be not only overlays and confusion but

also the inevitable result that the jury, in deciding whether the

defendant is eligible for the death penalty, will consider

evidence prejudicial to the issue of guilt or innocence as a first

degree principal, i.e., evidence the admission of which at a trial

would be reversible error.” Wiggins maintains that neither the

death penalty statute, nor the implementing rules of this Court,

prohibit bifurcation and that, in fact, they are consistent with

bifurcation of the sentencing proceeding.

In response, the State maintains that, in effect, Wiggins

seeks to have the sentencing jury first reconsider his guilt

“under the guise of a principal in the first degree determination

(after the court had convicted him of murder) without the jury’s

proper role of ‘sentencer’ being evident.”

According to the State, nothing in the capital sentencing

statute, Art. 27, § 413(a) , requires a separate sentencing

proceeding to determine the punishment, nor is it required by

the statute or the federal constitution that any component part

of the sentencing determination be determined in a separate

proceeding. See McGautha v. California, 402 U.S. 183, 91

S.Ct. 1454, 28 L.Ed.2d 711 (1971). The State points out that

Maryland Rule 4-343(e) prescribes the form for jury

deliberation of sentence in a capital case. That form places

before the jury, simultaneously, the issues of principal in the

first degree, mitigating and aggravating circumstances, and the

ultimate determination. Rule 4-343(f) delineates circumstances

under which the form, in less than its entirety, may be

submitted to the jury. Nothing in the rule, however, mandates

a bifurcated hearing and we perceive no error in the trial court’s

refusal to order bifurcation. See Hunt v. State, supra; State v.

Colvin, 314 Md. 1, 548 A.2d-506 (1988). But even assuming,

arguendo, the existence of inherent discretion in the trial court

26a

to bifurcate the proceeding, no abuse of discretion would have

resulted from the denial of the bifurcation request.

Wiggins next claims that the trial judge, during the

sentencing hearing, committed reversible error when he

admitted evidence relating to a T.V. Guide book found in the

victim’s apartment at the time her body was discovered.

Specifically, he claims that testimony by a police officer

described a T.V. Guide magazine with markings on all of the

pages through the date that the victim was last seen alive, but

not thereafter. Wiggins asserts that this testimony was

irrelevant and prejudicial. He argues that it had no probative

value, because no witness testified regarding the victim’s habit

of marking T.V. Guide magazines. Therefore, he says, it is not

known when these marks were made, why they Were made, or

even by whom they were made.

In State v. Joyner, 314 Md. 113, 119, 549 A.2d 380

(1988), we applied the test which governs the admissibility of

evidence in a criminal case. We noted that there are two

important components of relevant evidence: materiality and

probative value. Materiality looks to the relation between the

proposition for which the evidence is offered and the issues in

the case. Probative value is the tendency of evidence to

establish the proposition that it is offered to prove. Evidence

which is not probative of the proposition at which it is directed

is irrelevant. Id. at 119. Thus, to be of probative value,

evidence must only have a tendency to prove the fact at issue;

it need not establish the fact conclusively or be beyond doubt.

A daily pattern of marking each day’s television

programs was reflected in the magazine, and it ceased as of the

time the victim was last seen alive. While it is theoretically

possible that someone other than the victim made the marks, or

27a

that they were made randomly, or were all made on one day,

these possibilities do not circumscribe the relevance and

admissibility of the evidence. The victim lived alone, and the

factfinder could infer that the markings were made on a

day-to-day basis, in a contemporaneous fashion, consistent with

the victim’s daily television viewing selections. We think that

the date on which the markings ceased had a tendency to prove

that the victim died on September 15 and, therefore, the

evidence was properly admitted.

XI.

Wiggins further complains that testimony by one of the

victim’s friends, Mary Elgert, constituted victim impact

evidence which was inadmissible under Booth v. Maryland,

482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987).

Specifically, Ms. Elgert testified that the victim was “a very

happy-go-lucky persan” who was “always thinking of

something interesting.”

We think it clear that Ms. Elgert’s testimony could in

no event be deemed victim impact evidence under the Court’s

decision in Booth; it did not describe the impact of the crime on

the victim’s family, or the family members’ opinions, and

characterizations of the crime and the defendants. See Mills

v. State, 310 Md. 33, 72-73, n. 14,527 A.2d 3 (1987), rev’d on

other grounds, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384

(1988). The even more compelling answer to Wiggins’s

contention is that in Payne v. Tennessee, 501 U.S. __, 111

S.Ct. 2597, 115 L.Ed.2d 720 (1991), the Supreme Court

reversed its earlier holding in Booth, concluding that the Eighth

Amendment does not prohibit a jury from considering, at a

capital sentencing hearing, “victim impact” evidence relating

to a victim’s personal characteristics, and the emotional impact

of the murder on the victim’s family. Accordingly, there was

no error in admitting Ms. Elgert’s testimony in evidence.

28a

XII.

Relying upon Art. 27, § 414(e)(4), Wiggins attacks his

death sentence on proportionality grounds. He claims that the

sentence was excessive and disproportionate to the penalty

imposed in similar cases, considering both the crime and the

defendant, and therefore violated the statute. Moreover, he

argues that his sentence contravened Articles 16 and 25 of the

Maryland Declaration of Rights, and the 8th and 14th

amendments to the federal constitution.

In Tichnell v. State, 287 Md. 695, 739, 415 A.2d 830

(1980), we said that a death sentence in a murder case “may be

affirmed only if juries throughout the State have imposed the

death penalty for that kind of offense.” The purpose of

proportionality review under § 414(e)(4) is substantially to

eliminate the possibility that a person will be sentenced to die

by the action of an aberrant jury, so that if the time comes when

juries generally do not impose the death sentence in a certain

kind of murder case, this Court can vacate the death sentence.

Trimble v. State, 300 Md. 387, 429, 478 A.2d 1143 (1984):

Wiggins says that juries throughout the State have not

imposed the death penalty in murder cases involving the single

aggravating factor of murder in the course of a robbery. He

invites our attention to a compilation of detailed sentencing

information in 198 cases of robbery-murder committed since

July 1, 1978, involving allegedly similar factual situations,

where the death penalty was either not sought or was sought

but not imposed.

We have considered the cases that Wiggins presents for

comparison purposes. The compilation is much like that

considered by us in Collins v. State, 318 Md. 269, 298-300,

568 A.2d 1 (1990), another capital prosecution based on

murder committed in the course of a robbery. There, we noted

29a

that similarities and differences were evident in the respective

cases presented for our review; but we perceived no useful

purpose in setting them out seriatim, with some particular facts

included about each case and each defendant, citing Foster v.

State, 304 Md. 439, 484, 499 A.2d 1236 (1985),

reconsideration denied, 305 Md. 306, 503 A.2d 1326, cert.

den., 478 U.S. 1010 (1986). Suffice it to say that our analysis

of the “similar cases” formulation of § 414(e)(4) leads us to

conclude that the death sentence has been imposed in a

significant number of cases where the aggravating

circumstance was that the murder was committed during the

course of arobbery. See Collins, supra; Foster v. State, supra;

Johnson v. State, supra; Colvin v. State, 299 Md. 88, 472 A.2d

953 (1984). See also White v. State, supra.

Wiggins was found to be a first degree principal in the

murder-drowning of a defenseless elderly woman in her home

during the perpetration of a robbery. From the physical

evidence at the scene of the crime, it is evident that the victim

struggled with Wiggins before being immersed in her bathtub

to suffer a brutal death. Even though the prime mitigating

circumstance was Wiggins’s lack ofa prior criminal record, we

conclude that the death penalty in this case was neither

excessive nor disproportionate. Nor was it aberrant, arbitrary,

capricious, or freakish; and it was not imposed under the

influence of passion, prejudice, or because of the existence of

an arbitrary factor. Contrary to Wiggins’s suggestion, society

has not rejected capital punishment for the type of

murder-robbery committed in this case, considering both the

crime and the defendants in light of similar cases.

XI.

Wiggins contends that the Maryland death penalty

statute is unconstitutional because he was required to prove

mitigating factors by a preponderance of the evidence. There

30a

is no merit to this contention. See Walton v. Arizona, 497 U.S.

__, 110 S.Ct. 3047, 3055, 111 L.Ed.2d 511 (1990); Collins,

supra, 318 Md. at 296; Calhoun v. State, 306 Md. 692, 739-40,

511 A.2d 461 (1986), cert. denied, 480 U.S. 910 (1987).

Wiggins further contends that the Maryland statute is

constitutionally defective because, with respect to those

mitigating circumstances not enumerated in the statute, he was

required to convince the sentencing authority, by a

preponderance of the evidence, not only that the circumstance

exists but that it was mitigating in nature. There is no merit to

this contention. See Boyde v. California, 494 U.S. , 110

S.Ct. 1190, 1196, 108 L.Ed.2d 316 (1990); Franklin v,

Lynaugh, 487 U.S. 164, 188, 108 S.Ct. 2320, 101 L.Ed.2d 155

(1988); Foster v. State, 304 Md. 439, 476- 80, 499 A.2d 1236

(1985).

Wiggins next maintains that the Maryland statute is

unconstitutional because the death sentence may be imposed if

the aggravating circumstances outweigh the mitigating

circumstances by only a preponderance of the evidence. There

is no merit to this contention. See Collins, supra, 318 Md. at

296; Tichnell, supra, 287 Md. at 731- 32.

XIV.

Finally, Wiggins contends that the trial court erred in

imposing two eighteen- month concurrent sentences for his two

theft convictions. He maintains that these convictions should

have merged into his robbery conviction on principles of

merger, i.e., that the robbery convictions involved theft of the

same property charged in the theft counts of the indictment.

The State agreed, pointing out that the thefts were lesser

included offenses of the robbery. Accordingly, we shall vacate

the theft convictions on counts four and five of the indictments.

3la

EXCEPT

T 4 F

NT T H

THE JUDGMENTS ARE VACATED.

32a

IN FHE COURT OF APPEALS OF MARYLAND

No. 139

September Term, 1989

KEVIN WIGGINS

STATE OF MARYLAND

Murphy, C.J.

Eldridge

* Cole

Rodowsky

McAuliffe

Chasanow

Smith, Marvin H.

(retired, specially assigned),

JJ.

Dissenting Opinion by Eldridge, J.,

in which Cole, J., concurs

Filed: November 8, 1991.

*Cole, J., now retired, participated in the hearing and

conference of this case while an active member of this Court;

after being recalled pursuant to the Constitution, Art. IV, Sec.

3A, he also participated in the decision and adoption of this

opinion.

33a

Eldridge, J., dissenting:

In my view, the evidence at the sentencing hearing was

insufficient for the jury to find, beyond a reasonable doubt, that

Kevin Wiggins was a principal in the first degree in the murder

of Florence Lacs. Consequently, I dissent from the judgment

affirming the imposition of the death penalty.

When reviewing the sufficiency of the evidence, the

relevant question is “whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

318-319, 99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560, 573

(1979); Tichnell v. State, 287 Md. 695, 717,415 A.2d 830, 842

(1980). The finding that Wiggins was a principal in the first

degree, however, rests entirely on circumstantial evidence.

“( A] conviction upon circumstantial evidence alone is not to be

sustained unless the circumstances are inconsistent with any

reasonable hypothesis of innocence.” West v. State, 312 Md.

197, 211-212, 539 A.2d 231, 238 (1988). See also Wilson v.

State, 319 Md. 530, 535-537, 573 A.2d 831, 833-834 (1990).

The evidence presented at the sentencing hearing would permit

a reasonable trier of fact to hypothesize that Wiggins was not

a principal in the first degree.

Under the Maryland statutory scheme, the proof

concerning guilt required at a capital sentencing hearing is

different from the proof required at the guilt or innocence stage

of the trial. At the guilt or innocence stage, the State must

prove beyond a reasonable doubt that the defendant is guilty of

first degree murder. The defendant may be guilty of first

degree murder, of course, even though he is a principal in the

second degree, an accessory, or guilty under the felony murder

doctrine. At the sentencing stage more is required, as the State

must show beyond a reasonable doubt that the defendant was

34a

the actual perpetrator of the murder. He must be a principal in

the first degree. Maryland Code (1957, 1987 Repl. Vol., 1991

Cum.Supp), Art. 27, § 413(e)(1); Maryland Rule 4-343(e);

Johnson v. State, 303 Md. 487, 510, 495 A.2d 1, 12 (1985),

cert. denied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907

(1986); Stebbing v. State, 299 Md. 331, 371, 473 A.2d 903,

923, cert. denied, 469 U.S. 900, 105 S.Ct. 276, 83 L.Ed.2d 212

(1984).'

In this case, the evidence produced at the sentencing

hearing differed in some respects from the evidence presented

at the guilt or innocence stage of trial. For example, the

sentencing jury did not hear any testimony from Wiggins’s

cellmates. Thus, the jury could not take into account the

testimony given at the earlier stage of the trial concerning

conversations Wiggins allegedly had about the circumstances

of the murder with these cellmates. Moreover, the testimony

of Wiggins’s employer at the sentencing hearing differed

somewhat from his testimony at the guilt or innocence stage.

In addition, the significance of some of the evidence at the

sentencing hearing was different from its significance at the

earlier stage. This is true of the evidence pointing to the

involvement of someone other than Wiggins in the robbery and

murder.

The State’s theory was that Wiggins committed the

robbery and murder between the time he was initially dismissed

from work on Thursday and the time he returned to inform his

employer that he had moved some sheetrock. The State’s case

at sentencing was based on Wiggins’s presence near the

victim’s apartment on Thursday afternoon at approximately

5:00 p.m. and on the fact that Wiggins and his girlfriend used

. There is one exception to the requirement that the

defendant be a principal in the first degree, but it is not relevant here.

35a

the victim’s credit cards and car on Thursday night. While this

evidence may have been sufficient to establish that Wiggins

was involved in the robbery of Ms. Lacs, it was not sufficient

to show, beyond a reasonable doubt, that Wiggins was the

actual perpetrator of the murder.

The State produced no direct evidence supporting its

theory that the victim died at approximately 5:00 p.m. on

Thursday. The expert testimony with regard to time of death

advanced by the State was more consistent with the defendant’s

theory that the victim had died on Friday evening. The Death

Certificate, as originally filled out by the State’s expert, fixed

the approximate time of death as Friday evening. At the

sentencing hearing, each of the three expert witnesses estimated

that the maximum range for a time of death extended back to

approximately 9:00 p.m. on Thursday, which was after Wiggins

went shopping with the victim’s credit cards.

The weakness of the State’s theory with regard to time

of death was further undermined by the testimony of Edith

Vassar who reiterated that she had spoken to the victim over

the telephone on Friday morning.’ Ms. Vassar testified that

they discussed the luncheon which she and Ms. Lacs had

attended on Thursday afternoon.

Furthermore, two of the girls whose testimony placed

Wiggins at the scene testified that Wiggins had spoken to Ms.

Lacs about some sheetrock at 5:00 p.m. or 5:30 p.m. The girls

testified that Wiggins left the building ahead of them. Wiggins

checked in with his employer at approximately 5:05 p.m.

2 “Ms. Vassar also testified that she had received an

anonymous telephone call and that the caller told her that she must

be mistaken about the day of the call. At the sentencing hearing,

however, Ms. Vassar asserted that she was not mistaken.

36a

According to the employer, he had been gone for twenty

minutes.’ The subcontractor’s office was about five minutes

away from the victim’s apartment. This time sequence does

not give Wiggins much time to ransack the victim’s apartment,

to fill her bath tub with water, to drown her, and to go over the

entire apartment wiping off his fingerprints.

Other evidence which tends to weaken an already

fragile case of circumstantial evidence is the lack of

consistency in the testimony concerning Ms. Lacs’s clothing by

those who came in contact with her on Thursday, which,

according to the State, was the last day of her life. Mary Elgert,

one of Ms. Lacs’s friends, stated that Ms. Lacs was wearing a

light blue skirt and a white biouse Thursday afternoon.

Elizabeth Lane, another friend, told the police on Saturday that

Ms. Lacs was last seen wearing a red dress as late as 4:00 p.m.

on Thursday. One of the girls in the hallway, Chentell

Greenwood, testified that at approximately 5:00 p.m. on

Thursday, Ms. Lacs had on a red skirt and a white blouse. The

pictures of the victim submitted to the jury show that the skirt

was dark blue. The color of the skirt was characterized by the

defendant’s attorney as teal and by Detective Crabbs as green.

This conflicting testimony cannot support the inference that

Ms. Lacs died on Thursday because she was found in

Thursday’s clothes.

Finally, evidence was discovered which tended to point

to the participation of another person in the robbery/murder.

. Wiggins’s employer testified at sentencing that Wiggins

was dismissed from work at 4:45 p.m. on Thursday. The employer

also testified that Wiggins returned twenty minutes later to inform

his boss that he had moved some sheetrock to the front of the

building. At the guilt or innocence stage of the trial, as pointed out

in the majority opinion, the employer testified that Wiggins had been

gone for twenty-five to thirty- five minutes.

37a

Several fingerprints that did not belong to Wiggins were found

in the apartment. The places where these prints were found are

relevant. They were discovered on the front door arch, the

archway wall of the kitchen, and on the doorjamb leading to the

bathroom. Others were found on a soap box on the kitchen

table which, along with other cleaning items, had been moved

from their usual places in the kitchen. In addition to the

fingerprints, the investigation also discovered a man’s hat

bearing a Ryder Rental Truck emblem at the scene. Police

were unable to tie this hat to Wiggins, and none of the

witnesses who testified that they had seen Wiggins that day

testified that Wiggins had been wearing this hat.

When viewed in isolation, the fingerprints and the hat

perhaps may not, as the majority states, “support a reasonable

hypothesis that another individual was present in the victim’s

apartment....” When this evidence is added to an already weak

circumstantial case, however, the combination leads to the

conclusion that the evidence at the sentencing hearing was not

sufficient to establish, beyond a reasonable doubt, that Wiggins

was the principal in the first degree.

In addition to the insufficiency of the evidence per se,

there is another ground warranting a reversal of the death

sentence. This Court is required by Art. 27, § 414(e)(4), to

conduct a proportionality review. Under the present death

penalty statute, this Court has never upheld a death sentence on

evidence as weak as that introduced in this case. In the

numerous cases where we have upheld the death sentence, there

was little question that the defendant committed the murder as

a principal in the first degree. Evidence which supported these

findings included a confession by the defendant, Stebbing v.

State, supra; eyewitness testimony to the incident, Gilliam v.

State, 320 Md. 637, 579 A.2d 744 (1990), cert. denied, __

US. _, 111 S.Ct. 1024, 112 L.Ed. 2d 1106 (1991);

Huffington v. State, 304 Md. 559, 500 A.2d 272 (1985), cert.

38a

denied, 478 U.S. 1023, 106 S.Ct. 3315, 92 L.Ed.2d 745 (1986);

White v. State, 300 Md. 719, 481 A.2d 201 (1984), cert. denied,

470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 837 (1985); and

fingerprints of the defendant at the scene coupled with the

defendant’s possession of the victim’s property, Colvin v. State,

299 Md. 88, 472 A.2d 953, cert. denied, 469 U.S. 873, 105

S.Ct. 226, 83 L.Ed.2d 155 (1984). Where the defendant’s

participation in the murder as a principal in the first degree is

based upon a very weak case of circumstantial evidence, a

sentence of death is disproportionate.

I would vacate the death sentence and remand for the

imposition of a life sentence.

Judge Cole has authorized me to state that he concurs

with the views expressed herein.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.