*1
Court of Nov. 1991. *5 Moore, Doyle Defender and Julia Melissa M. Asst. Public Defender, Murrell, Bernhardt, Alan H. Public Asst. Public brief, Defender, Baltimore, on for appellant. Rosenblatt, Gen., Joseph Asst. J. Cur- Atty. Richard B. Baltimore, brief, ran, Jr., Gen., appellee. for Atty. MURPHY, C.J., ELDRIDGE, *, and COLE Argued before McAULIFFE, RODOWSKY, CHASANOW and MARVIN (retired, SMITH, Appeals specially of the Court of Judge H. assigned), JJ.
MURPHY, Judge. Chief trial nonjury was convicted at
Kevin J.) willful, (Hinkel, County for Baltimore Circuit Court murder, deliberate, and two premeditated robbery, 18, 1989, following jury counts of theft. On October a princi- was determined to be sentencing hearing, Wiggins count. He was degree first on the murder pal in the notice that it of the State’s pursuance sentenced to death (1987 Code by Maryland as authorized sought penalty, 412(b). Art. Repl.Vol.), § Wiggins maintains judgments, from these appeal On these offenses guilt trial as to his he is entitled to a new (1) was insufficient to establish the evidence because (2) the trial court of the crimes perpetrator he was the trial. also his motion for a new denying erred reasons, imposition that the separate urges, for twelve improper and new penalty the death required. is therefore hearing * retired, Cole, J., hearing this participated in the and conference of now Court; being recalled active member of this after case while an Constitution, IV, 3A, participated in Sec. he also pursuant to the Art. adoption opinion. of this the decision and
I. *6 The Trial Lacs, victim, Florence the murder seventy-seven-year-old Woodlawn, resided at the Manor in Apartments Mary- Clark afternoon, 1988, 17, land. On at Saturday September ap- in p.m., 3:50 her dead found the proximately body was side, apartment. lying bathtub of her She was on her half- greenish of a hue. by cloudy slightly covered water She skirt, blouse, in fully was clothed a blue a white and white wearing underpants not and her skirt beads. She was was in pulled up to her waist the back. No shoes were on the one in the body, slipper floating but bedroom was bathtub (its lying hallway apartment). mate was the of her Thursday, Septem-
The evidence at trial showed that on Elgert Elgert the victim to a luncheon. Mary ber drove skirt, wearing light testified that the victim was then blue blouse, and shoes. said that the white white She victim 4 p.m. day. drove her home from the luncheon at Edith Vassar was also in attendance at the luncheon. luncheon, on day Friday, She testified that the after the a.m., phoned at the victim September approximately they her and discussed an event that occurred at the lunch- eon the previous day. present September Lane was at the luncheon on
Elizabeth driving apartment complex 15. She recalled the victim’s by her not following day p.m. the and noted that car was parking in the lot. failed to attend a When victim game Saturday, Septem- scheduled card at Lane’s house police p.m. were contacted at and Ms. Lacs ber she had reported missing. police was Lane told September last seen the victim on 15 and that she was wearing a red dress at that time.
In Saturday, September apart- the afternoon of Thiel, manager, Joseph police ment was alerted and apartment. he entered the He testified that the victim’s unlocked, lock on the door that the deadbolt but knob He dead in the lying lock was locked. discovered victim The police shortly They bathtub. arrived thereafter. found entry apartment, no evidence of forced into the but it had partially ransacked. Several drawers had been re- been from various locations living dining moved within night rooms were found on the floor. The stand pulled out and its contents disarray. drawer were enclosures; The headboard of the bed had two built-in they A open disarray. stood and their contents were likewise from on the drawer the buffet was bed with items strewn mussed, around it. The the mattress all bed was with sitting spring; pillow on the cases askew box were missing. damp lying dining A cloth was on the room table damp lying and a towel was on the victim’s bed. kitchen, slightly open the window was but the screen was *7 open intact. The and some of house- cabinets were bottles tap running hold cleaner on the floor. The lying were was in In the on the sink a the kitchen sink. bathroom were insecticide, of spray can of a bottle household cleaner and a dishwashing liquid. of bottle the floor inside the front door of the was a apartment On cap logo which a Rental Truck displayed Ryder baseball its the coffee in front of the sofa were two bill. On table Guides, September one of which dated from 10 to T.V. was 16; pen through the had marked evening programs by been 15; the September and a bookmark had been inserted at The other page delineating September programs. 23; programs September T.V. Guide was for from 17 to it unopened. was from inside the fingerprints
Seven latent were recovered apartment, entrance door of the victim’s wall archway kitchen, into the doorjamb leading and bathroom. police processed appeared wipe The also what to be wet marks on the front face of an end-table found on the drawer marks, however, living compari- room sofa. These had no markings cleaning son were on a value. Similar observed The prints bottle the bathroom. seven latent were com- pared Wiggins’s prints and found not to match. of Two prints being police were identified as made one of the were not prints other five on the scene. The officers identified. pronounced and on the scene
Paramedics arrived noted time, paramedic 3:50 At that p.m. victim dead at lips victim’s about the expiratory cyanosis there dilated, that her arm and face, and pupils that her were and during the bathtub removed from rigid. She was jaw were of presence September evening Saturday, Medical Examin- State Felsenberg, Deputy Stanley Dr. body er, p.m. on the scene at who arrived Baltimore, Examiner’s office to the Medical transported midnight. approximately tagged refrigerated Examiner, Korell, Assistant State Medical Margarita Dr. morning on the body on the autopsy an performed cause of death was 18. concluded that the September She homicide. She that the manner of death was drowning and of the left hand and on the dorsal surface found a contusion She testified that hemorrhage in the neck area. tiny external force” and produced by “some injuries these were the victim’s death. struggle prior consistent with were minimum amount she could state “the Asked whether deceased,” Korell responded Dr. Ms. Lacs had been time for certain when say that she could way that there was no have it could been “guessed” died. She the victim hours, depending upon forty-eight than more or less struck Dr. the court Upon objection, number of factors. It to the time of death.” respect “with testimony Korell’s *8 evidence, however, that Dr. Korell was unable permitted or degree certainty of medical state, a reasonable to with of time was.” period maximum “what the probability, trial, testified Thomas, at the time age twelve Chianti 15, p.m., 4:30 or 5 she September approximately that on Patter- and Shanita visiting Chantell Greenwood was with apartment. When next to the victim’s apartment son at an had apartment, difficulty Shanita leaving were they from the sought assistance apartment her door locking help to lock attempting the victim was victim. While door, man, Wiggins, identified as volunteered later telephone rang assistance. When the inside Shanita’s apartment, she and Chantell it. they went answer While yictim heard gone, Wiggins were Chianti thank the for watching some sheetrock for him and heard the victim converse The briefly Wiggins. with evidence disclosed that this approximately p.m. conversation occurred at 5 or 5:30 Thereafter, girls apartment building. left the Several later, weeks Chianti was shown of six men. photographs Wiggins’s She selected as the that photograph person building.” “looked the closest to the man that was identify Wiggins Chianti was unable to at the trial. Weinberg, contractor, testified he Robert performing Apartments work at the Clark Manor at the employed time of the victim’s death. He said that he had 15, Wiggins September September on and that on while Wiggins equipment from the to a carrying apartment truck, the victim called out of her apartment window concern to that the truck expressed Wiggins might block her car. Weinberg assuring remembered victim that the truck did not her car. released Weinberg Wiggins block from on sometime 4 and September work between 4:45 p.m. He said that approximately twenty-five thirty-five thereafter, Wiggins minutes told him that he had moved another, building some sheetrock from one side of the Weinberg task that had not asked him to perform. Wein- berg testified that it would have taken minutes for only two Wiggins Weinberg to move the sheetrock. also testified for Wiggins appeared Friday, September work stating left that he was early, being day. but evicted evening The evidence disclosed that on the of September p.m., Wiggins, driving orange at about 7:45 the victim’s Chevette, friend, girl went to the home of his Geraldine to her Armstrong. According testimony, they shop- went ping purchases, and made several using victim’s credit cards, told Armstrong belonged which to his aunt. Armstrong signed said that she name to the victim’s charge slips because said his handwriting was bad. following day, September Wiggins Armstrong drove *9 again car, they in which went the victim’s after to work addi- purchase credit cards to using the victim’s shopping, items, ring Penney a at a J.C. including diamond tional Wiggins, she store, for a certificate. they which received for certificate. On said, name and address the gave false Armstrong pawned a Wiggins and Saturday, September in Armstrong he found the car. told had ring Wiggins which ring to the victim. belonged Armstrong and evening September Wiggins the of On in police driving the victim’s arrested while were time, that Arm- police At told the Wiggins that vehicle. In a state- to do with this.” strong anything “didn’t have the victim’s Wiggins claimed that he found police, ment to in lot on parking it on a restaurant keys car with the in 16; bag that the credit cards were Friday, September car; also ring floor that found on the and and using the credit cards Wiggins car. admitted he He with the State that ring. stipulated pawning purchases to make the victim’s credit cards several used 15. evening Thursday, September arrest, police seized rubber Wiggins’s At time no evidence from a in his trousers. There was glove pocket liquids various glove and the of an association between in the victim’s bathroom. Turner, Christopher from testimony
The State presented incar- Wiggins during pretrial met claimed to have who Turner, October, has a history 1988. who ceration abuse, Wig- drug testified that serious mental illness and car killed the lady told him that he had stolen a and gins said admitted belonged. the car Turner that whom her, and then he kicked the and beaten lady that had bathroom, something her in and had like put drowned Turner, According Wig- or ammonia the water. lye cards, credit lady’s purse, said he had taken the gins that in her car. away some after which he drove money, ring from the also took a Turner testified clothes; buy he the credit finger; used cards victim’s he permitted also his girlfriend to use the credit *10 cards. McElroy
John testified he met Wiggins that in the county detention whether, center and that asked him Wiggins at trial, the authorities could use a hair sample against him. McElroy Wiggins said that admitted that he had hit a in the back of the lady put head and her in the bathtub of house, her, $15,000 her and drowned then took from the house. also testified McElroy Wiggins that told him that he girlfriend had a named Geraldine.
The defense presented testimony Gregory of Kauff- man, a physician expertise with the field forensic of He pathology. nothing testified that there was in the autopsy report that made seem drowning likely cause of the victim’s death. He said that drowning unlikely seemed body because the showed no of a struggle. evidence He agreed that the manner of death was homicide. As to the death, time of Dr. Kauffman said that when the victim’s body photographed was first at 9 on p.m. Saturday, Septem- ber she had dead a maximum eighteen been hours. He reasoned there decompositional changes that were no at time, that which would have evident in that had been bodies longer been dead than hours. Dr. eighteen Kauffman referred to the inside especially and back of the left arm. areas, said, In these he there lividity, settling was or blood, and that decompositional changes occur first areas where blood has settled. He noted the absence or swelling bloating, marbling, and the absence of and skin Dr. slippage. opined Kauffman further that at the time the autopsy performed, rigor was mortis fully developed, was and that it had broken. In this he regard, been said that rigor fully developed mortis becomes eight around twelve hours after death. Dr. Kauffman noted body that the was refrigerated at the Medical Examiner’s shortly office before midnight; that, time, and he at believed that the victim had been dead hours at the twenty-one most. hearing evidence,
After all of the Judge Hinkel found murder, Wiggins guilty first-degree and theft. robbery, Clark Manor Wiggins He a fact that worked found as car she knew the victim and which complex Apartment Chianti Wiggins He that it was further found owned. on apartment Septem- of the victim’s Thomas outside saw of the victim’s possession and that ber He automobile, cards, day. later on that ring credit apartment ransacking of the victim’s concluded that the time that September between place took he at the the time that arrived released from work and car. Armstrong in victim’s home of Geraldine he police to the Wiggins’s statement court disbelieved 16. parking September in a lot on the car restaurant found keys were as fact the credit cards and car It found *11 after it had been ransacked. apartment taken from the that Ms. was mistaken Hinkel determined Vassar Judge the victim on the spoken she had when she said that Ms. mistak- Elgert and that was morning September wearing that the victim was police en she told the when 15. The court believed September on Thursday, red dress blouse wearing a blue skirt white that the victim was wearing when being the clothes she was day, on that this Dr. did credit The court not she found the bathtub. was death; time of testimony as Gregory Kauffman’s rather, murdered victim persuaded Wiggins it was killing willfully, 15 and that was done September and in the course of deliberately, premeditation and with did Judge Hinkel stated that he concluding, In so robbery. or Christo- testimony McElroy of either John not believe the admitted Turner, each of whom claimed that pher murdering robbing the victim.
II. Sentencing Proceeding much of by jury, elected to be sentenced As repeated. There adduced at trial was testimony however, of- were, some differences between evidence sentencing proceeding. at trial and at the fered Dr. Korell told the jury the victim died of drowning and that the manner of death was homicide. She testified victim sustained a contusion of the left hand and it that was a traumatic defensive-type injury. She made no
mention of the hemorrhage in the victim’s neck area. As to the time death, Dr. Korell said that taking into account a factors, number of including that the body refrigerated the entire night prior to the she autopsy, could not pinpoint the time of death. She estimated that the victim “could have died 24 or 48 hours she before was photographed at the crime scene p.m. at 9 on September 17,” if, or earlier as stated the paramedic, rigor mortis was present at 4 p.m. on that day. Dixon,
Dr. Ann the Deputy Chief State Medical Examin- er, testified that the victim died at least twenty-four hours before Dr. Felsenberg examined the body the crime scene and that death could have occurred or thirty-six forty-eight hours prior examination, to that or even farther back than that.
Chantell Greenwood testified that the victim wearing a red pleated skirt long-sleeved and a white blouse when she last September saw her on in15 the apartment hallway. date, She said that on that at approximately p.m., 5:40 she heard the painter victim and a exchange a few words hallway. Chianti Thomas reiterated her testimony about *12 Shanita, her visit to the victim’s neighbor, on September 15. She told the jury that the girls had difficulty locking the them; door behind that they victim; enlisted the of help that a man appeared time; on the scene at that and that she observed a brief exchange of words between the victim and the man she later Thus, identified as Wiggins. Chianti’s trial testimony differed from her testimony sentencing in her identification Wiggins. of trial, Before the Chianti had selected Wiggins’s photograph from a group photo- of graphs police that the had was, shown to her. She how- ever, unable to make an in-court identification. At the sentencing however, hearing, when the prosecutor asked in- she made an pick,” Chianti, you did picture whose “[a]nd Wiggins. of court identification for testified Camparini, expert pathologist, an
Dr. Silvia more than not been dead had body that the the defense autopsy performed Korell Dr. hours when twenty-four September 18. at 9 a.m. on determination, concluded be- jury
In its principal a in the Wiggins doubt that a reasonable yond Lacs, that one and murder of Florence degree first to the that proven, namely, had been aggravating circumstance of robbing in the course the murder committed Wiggins of preponderance unanimously by found jury The victim. existed, circumstance mitigating one the evidence that of convicted previously not been that had namely, circumstance mitigating An a crime of additional violence. than all but fewer jurors, one or more was found unani- jury twelve, Wiggins’s “background.” namely, of proved by preponderance that the State mously found out- circumstance aggravating proven that the evidence imposed it and circumstances weighed mitigating penalty. death
III. rest solely his convictions maintains because evidence, sustained un- cannot be upon they circumstantial hypothesis reasonable any are inconsistent with they less Wilson upon he relies proposition, For this innocence. and Westv. 535-37, (1990) State, 319 Md. 573 A.2d (1988). He 207-13, urges 539 A.2d hypoth- reasonable permit the circumstances because murder, is the evidence robbery esis of innocence perpetra- that he was the to establish legally not sufficient Wiggins postulates regard, In this tor of those offenses. between number of hours intervened that a substantial property possession into the victim’s time that he came that the State’s He contends the time that she died. hypothesis the reasonable preclude does not evidence *13 566
he entered the
apartment
victim’s
and stole her ring, car
keys, and credit
from her purse
cards
while she was at-
tempting
help
neighbor
her
lock her door. suggests that he
easily
could have
slipped into
victim’s
apartment and taken these items from her purse, which
could
just
door,
have been resting
inside the
or
otherwise
plain view. He readily acknowledges that the
proved
State
a legally
conviction,
sufficient
for
case
a theft
based on his
subsequent possession of the victim’s
property
on his
presence
scene;
at the crime
but he argues that this alone
does
prove
not
that
robbery
he committed
at the time he
possession
came into
Nor,
of the victim’s property.
he
says, does it
ah
support
inference that he is
guilty
murder,
especially
view the
State’s failure
establish
this,
that the victim died on September 15. As to
invites attention to Dr.
testimony
Kauffman’s
victim did
September
not die on
15 but more
likely
Moreover,
September 17.
Wiggins points to other evidence
mitigates against
his guilt,
namely,
testimony
friends,
the victim’s two
one of whom testified that she
a
from
telephone
Friday
received
call
the victim on
morning,
September 16, and the other who described the victim as
afternoon,
a red
wearing
Thursday
dress on
15.
September
evidence,
This
according to
Wiggins, highlights
State’s
failure
prove
that the victim was dead before or at about
the same time that he
possession
came into
of her car and
other belongings on
15.
September
Tichnell
287
Md.
Taking considering all Wiggins, and against much of the evidence in a most favorable to light of the case the evidence fact, Hinkel, trier of Judge as we conclude that of perpetrator determined that rationally Septem the crimes on offenses and that he committed Wiggins’s argument rejected 15. He ber considered but circumstances, together, taken demonstrated By express of innocence. his his hypothesis reasonable forth, Judge Hinkel did previously set findings, factual as and Wiggins’s robbery evidence that not credit any to his theft subsequent time murder were committed property. That personal the victim’s car and other as agree, or differed either unable witnesses were expert death, clearly not render erroneous does the time finding robbed Hinkel’s ultimate Judge on 15. September the victim murdered
IV. Wiggins contends that the trial court erred in denying motion for a new trial. He points out that evidence was hearing adduced at the on the motion which disclosed that Dr. prior trial Korell told defense counsel that the victim died from four to ten hours before her body was discovered September 17, the outside limit twenty-four hours. The also later, evidence showed that days two after Dr. Dixon, Korell had conferred with Dr. Ann the Deputy Examiner, State Chief Medical she told defense counsel that *15 her opinion changed had and that the time of death could have been forty-eight body hours before the was discover- ed.
Wiggins notes that at the trial Dr. Korell testified that unable, she was with reasonable medical to certainty, estab- of lish time death. Wiggins next notes that Dr. Korell testified the sentencing hearing at that the victim had been dead twenty-four to forty-eight prior p.m. hours to 9 on September 17. evidence,
On the basis of this Wiggins argues that Dr. Korell’s at expert opinion the sentencing hearing newly discovered evidence contemplation Maryland within the of 4-331(c), Rule a justifying award of new trial. He claims this opinion that was clearly material and would have an produced acquittal since the outside limit of her range established that the victim was alive after he came into possession of her property. According Wiggins, had this trial, testimony been introduced at the it would have been consistent expert’s with defense as opinion time of death and would have exonerated guilt. from words, In other Wiggins says that had the evidence at trial included Dr. opinion, Korell’s revised all the medical evidence introduced at the trial would have been consistent only his with innocence. vein,
In a similar argues that Dr. Korell’s “shift- on ing opinions the time of death” denied him a fair trial. He that says “matters would have if been different” Dr. her opinion with at trial had been consistent opinion Korell’s hearing. sentencing at the testimony Dr.
Assuming, arguendo, Korell’s evi newly discovered hearing amounted trial determining new dence, standard for whether it is whether upon that evidence granted should be based result, i.e., “there was a produced have different may that the verdict significant possibility or substantial Yorke v. have been affected.” See trier fact would 578, 588, (1989). 556 A.2d indicated, at the rendering verdict earlier As trial, Hinkel stated: Judge of death.
“Now, over the exact time lot has been made I persuaded, of death. am I know the exact time don’t Mrs. however, all that the death of from the evidence p.m. Septem- on not occur sometime between Lacs did the 18 9-17, on which would be 17th and 3:00 a.m. ber I am Dr. Kauffman. period hour that was testified to it the fifteenth Thursday occurred persuaded September.” trial, Judge Hinkel motion for a new denying the
stated: *16 and there’s this case many
“But there’s so other facts of sort. The testimony about medical this nothing certain profession the medical is the defense knew that state and any degree of prepared or state with equipped not to matters it as probability, appears, not even certainty, in this case But all the other evidence of this nature. me, guilt/innocence for at the was sufficient certainly to deter- sentencing phase, in the stage, jury and for the a in the first de- principal Mr. was mine that gree.” not rely that the trial did readily apparent judge
is It thus the time respect to of upon testimony Korell’s trial with Dr. trial, given at the which she Indeed, her estimate death. the victim could have “guess,” as a was that characterized hours when her forty-eight more or less than been dead body testimony, was discovered. This upon Wiggins’s ob- jection, was stricken and thus not considered at the trial. motion,
In denying Wiggins’s new trial Judge Hinkel recognized expert as testimony to the time death uncertain was and that was aware of this fact. Judge Hinkel, fact, as trier of concluded that the claimed newly discovered produced evidence would not have dif- that, ferent result. In this note regard, we at the sentenc- ing hearing, Dr. Korell’s testimony was that Ms. Lacs could have twenty-four been dead to forty-eight hours to 9 prior September p.m. she photographed when bathtub, or Thus, even earlier on that day. her revised trial, if opinion, introduced at would have actually Judge buttressed State’s case. We hold that Hinkel did not abuse his in denying discretion the new trial motion.
Nor is there merit in Wiggins’s claim that he should granted be trial Dr. new because Korell’s testi changing mony rendered trial fundamentally unfair. As the trial noted, indicates, court and the record medical testimony time regarding fraught of death is with uncertainty. Wig gins aware changed that Dr. Korell her opinion once trial, to, prior ample the defense had time did, secure its qualified expert testimony own on this mat ter. As the ambivalence of State’s expert witness was defense, opinion known to the her at the hearing deprive Wiggins did not Accordingly, fair trial. we find no merit in this argument.
V. Wiggins argues that he cannot be sentenced to death Maryland (1987 because under Code Repl.Vol.), Art. 413(e)(1), prove beyond State failed a reasonable § he principal doubt that was a in the first degree. response, the State maintains that the evidence does not disclose person the existence a second in the commission *17 crimes, of the jury and therefore the properly concluded principal that in Wiggins degree. was the first
571 331, 371, State, in Stebbing As we said is for the death sentence (1984), eligibility 473 A.2d as a degree of first murder convicted persons confined to actually one who degree, namely, by in principal the first hand, or inanimate crime, by his own an commits a either agent. human Johnson v. byor an innocent agency, (1985).1 487, 510, A.2d Md. indicated, which there was evidence already As apart near the victim’s Wiggins present showed that was crimes. The manner of time the approximate ment at the homicide, the circumstances and victim’s death was the premeditated. the murder was demonstrated plainly evidence, Wig circumstances disclosed Under the she property shortly victim’s after gins’s possession an inference that he was support murdered was and robbed the murder. robbery of both the and the perpetrator Wiggins company was seen There was no evidence In this the time of the offenses. with another at person had released indicated that he Wiggins’s employer regard, 4:45 p.m., approximately from work later, reporting that twenty some minutes Wiggins returned before, Wiggins As he had moved some sheetrock. thereafter, arrived at his when Shortly alone. car, again he was home, driving the victim’s girlfriend’s according to present, There no other individual alone. evidence, Wig- which during three-day period over the victim’s credit cards to gins girlfriend used of property. various items acquire arguments suggesting Wiggins’s We considered have because unidentified presence perpetrator second scene, Ryder well as the the crime as fingerprints found at on the floor inside just Truck hat that was found Rental fingerprints, to the unidentified door. As apartment failure, investigation, identity after ascertain State’s penal- statutory exception perpetrator requirement A death 1. employs is also a ty provision that who another kill cases is the one 413(d)(7) 413(e)(1). degree principal. and § See Art. § first *18 of prints these does not support the existence a second participant. regard, In this the fingerprint experts were the prints uncertain that unidentified were those the not victim, prints inasmuch as the taken from her body were of such poor quality. We view this evidence as incon- wholly clusive and not supportive of a reasonable that hypothesis Wiggins have in may acted concert person. with another hat,
As to the police the it for examined hair and fibers but found only few small lint fibers on its inside rim. The took police the hat to to if two stores see they type sold that of hat and found that neither most, did. At this evidence showed that the after investigation, was unable to prove that owned the hat or that belonged it to someone else. This evidence does support not reasonable hypothesis present that another individual in was the vic- apartment tim’s at the time of the crimes and that it was person, himself, that other not actually who killed the victim. find no in Accordingly, we error the jury’s finding that in a principal the first degree.
VI. Prior sentencing, the State moved in limine exclude evidence its offer of a life in exchange sentence for a guilty plea. Wiggins had indicated an intention to introduce evidence of during this offer hear ing. offer, court ruled that while the if admitted in evidence, defendant,” “mitigatef would in favor of the it ] was not admissible before the sentencing authority as it would seriously cripple plea negotiation process capi prosecutions. tal sentencing
Wiggins argues
plea
State’s
offer
properly
because,
admissible as mitigating evidence
under Lockett v.
Ohio,
(1978),
U.S.
98 S.Ct.
Court held that require Amendments Eighth
“the and Fourteenth case, capital kind of sentencer, in all the rarest but *19 considering, a mitigating not from as precluded be record character or of a defendant’s any aspect factor, the the of offense and of the circumstances any than a less proffers a basis for sentence defendant as death.” omitted.) Nothing in in original; footnotes
(Emphasis of authority said, “limits the traditional Lockett, the Court irrelevant, bearing not exclude, evidence to as the court character, record, or the circum- prior the defendant’s 2965, 605, 12, at at n. 98 S.Ct. of his offense.” Id. stances 527-28, at 495 Johnson, 303 Md. 12, supra, n. in quoted A.2d 1. other of sentences appropriateness
We have said that the
mitigat-
as a
by the sentencer
than death
be considered
may
See Hunt v.
in a
ing
capital prosecution.
circumstance
387, 404,
(1990); Doering
218
State,
583 A.2d
321 Md.
(1988);
384,
A.2d
Harris v.
State, 313 Md.
Hunt,
In
the
(1988).
defendant
did not seek offense, reopen to his case to request a his handgun for and that the trial We held by judge. offer it denied the case-in-chief, in Hunt’s been admissible evidence would have assessing legal in the the jury as evidence that “would aid death,” 321 Md. sentence less than practical and effect a did not abuse judge that the trial 583 A.2d but Harris, In reopen. to denying request his discretion in on the imposed of the sentences held that evidence we offense, robbery robbery for a related where defendant sentencing in capital a aggravating factor statutory the sentenc- reasoned that was admissible. We proceeding, consider, might factor, er mitigating as a the fact that the had already appropriately defendant been sentenced for that crime. In held in Doering, we defendant capital proceeding may introduce relevant competent information regarding eligibility parole for in imposed. explained the event a life sentence is We that the sentencer, seeking in to the appropriateness determine of a sentence, life would be aided information de- correctly scribing the legal practical sentence, effects such a an appropriate and that existence of alternative sen- may tence be considered as a relevant circum- mitigating stance. 313 Md. at A.2d Doering, 1281. these cases, the potential three the factors with to mitigate were to related the actual amount time defendant was spend prison in likely the event that elected to jury sentence; impose a life consequently, they constituted rele- for jury determining vant information consider appropriate disposition. plea offer, hand,
Evidence of a
on the
is not
other
an
appropriate
jury making
factor
aid the
its determina-
concedes,
tion. As
may
sought
State
have
*20
plea
acquittal
to avoid the
of an
in a
guilty
possibility
case
largely
involved
circumstantial
This prose-
evidence.
which
not, therefore,
cutorial concern would
indicate
necessarily
that the State considered life
to
appropri-
sentence
be the
words,
ate
for
In
punishment Wiggins’s crimes.
other
as
suggests,
plea
the State
its
offer did not
either
reflect on
defendant;
rather,
the crime or the
character
it
resulted after the State
strength
evaluated the
of its case
and the concern
it had
might
that
that the
not return a
jury
Thus,
verdict.
the
guilty
plea
evidence
offer did not
character,
on the
record,
bear
defendant’s
or the
prior
the crime,
circumstances of
and was
relevant mitigating
not
563,
evidence. See
297
Calhoun v.
Md.
VII. next contends that the trial erred in court excluding from the consideration of sentencing jury, as
575 mitigating evidence, a three-volume collection relevant a sen- detailing capital cases where potentially documents to death He attention imposed. tence less than draws 414(e)(4), case 27, every Art. this Court requires which § it to imposed compare to where the death sentence has been not “in to it is imposed those similar cases” insure crime disproportionate, “considering excessive or both propor- defendant.” claims that sentence sentencing appropriate is an consideration for the tionality well, and should proffered as that the evidence authority that, claims have admitted for its consideration. He been sentencing not have information, the did lacking jury this sentencing information to make its decision—infor- relevant which, traditionally he in determin- says, mation is relevant and which have assisted ing appropriate sentence would given aggravating determining weight be jury weighing against mitigating them circumstances. factors In had the known of the regard, Wiggins says jury this in mur- imposed life is frequency imprisonment with which own, might than it der cases of a more extreme nature death. return a sentence less than well have determined to State, Md. (1991), White 589 A.2d sentencing in capital we review proportionality noted that 414(e)(4) requires Art. the review be cases under § authori by this not by conducted Court and no noted that there is federal ty. We further constitutional requirement proportionality penalty review in death Harris, 50-51, citing Pulley v. cases, 465 U.S. 104 S.Ct. (1984). 879-880, recognized While L.Ed.2d we proffered a defendant to establish by evidence mitigating generously of a circumstance should be existence cir sentencer, mitigating also said that viewed we *21 specific” and specific” are “defendant “incident cumstances ordinarily findings regarding person another that fact benefi any way do not in tend to establish material White, supra, entirely cial different individual. to an State, 303 Md. supra, Johnson 969; Md. 589 A.2d at no 528-29, reasons, A.2d like also find at 1. For we merit in Wiggins’s argument further the trial court erred in excluding from evidence a law review article chro- nicling which, a study according author, to the uncovered 350 cases in a miscarriage which of justice occurred in a case. potentially capital
VIII. Wiggins maintains that right of allocution be fore the sentencing jury unduly restricted. Particular ly, argues he that after all of the evidence had been presented to the sentencing authority, but before the court given had its instruction to the he jury, sought show, to allocution before the jury, he had been offered a life in exchange sentence for a guilty plea rejected but had State’s offer. In denying request, the court noted that allocution “is considered evidence in the case for the pur poses jury determining what the sentence ought be although ... that evidence is not given under ... oath.” The court restricted Wiggins’s right of allocution for the same reasons which caused it to exclude the same evidence at the sentencing hearing.
Wiggins argues
that under Harris v.
(1986),
Although the custom predates Maryland Rules, the right of allocution is provided now to a defendant in a capital 4-343(d). case by Maryland Rule The Rule provides, in pertinent part, “[bjefore determined, sentence is court shall afford the defendant the opportunity, personally counsel, and through Harris, to make a statement.” Md. at 509 A.2d we said that a defendant who timely allocute, asserts his right provides who an *22 opportunity a fair must afforded be acceptable proffer, however, the not, circumscribe right. We did this exercise over the of trial judges discretion and traditional broad that the trial; rather, recognized we criminal of a conduct that is discretion, “allocution could, curtail in its court trial 359, 509 Id. at unreasonably protracted.” irrelevant or stated, that the earlier conclude, for reasons 120. A.2d We matter proper not a agreement was plea of a State’s offer deciding appropriateness in jury for the of consideration sentence. of a death
IX. denying in trial court erred that the urges next In hearing. this sentencing motion for a bifurcated his be bifur- sentencing proceeding he moved that regard, first decide could jury so that the court cated and, if that degree in first principal he was a whether affirmative, separate proceeding found in the issue was aggravating whether held to determine should then be and circumstances mitigating outweighed the circumstances Wiggins, According to penalty. appropriate death was the arise “which problems solution to equitable this is a fair the issue both sentencing proceeding, deciding, at the from penalty.” appropriate and the degree principal first not will be that “there bifurcation, Wiggins argues Without result also the inevitable but and confusion only overlays eligible is the defendant deciding whether that the jury, prejudicial consider evidence will penalty, for the death principal, degree as a first or innocence guilt issue of trial would be at a admission of which ie., evidence the death neither the Wiggins maintains error.” reversible Court, of this rules statute, implementing nor penalty consistent that, fact, are they prohibit bifurcation sentencing proceeding. with bifurcation that, effect, Wiggins maintains the State response, guilt first reconsider sentencing jury to have the seeks degree determi- in the first principal of a guise “under the (after nation the court had murder) convicted him of with- out jury’s proper role of ‘sentencer’ being evident.”
According to the
nothing in the capital
statute,
413(a),
Art.
requires
separate
§
*23
to
proceeding
determine the punishment, nor is
required by
it
the statute or the federal constitution that
any component
part
sentencing determination be
determined in
separate
a
proceeding. See McGautha v.
California,
402 U.S.
91 S.Ct.
X.
Wiggins next claims that the trial judge, during the
sentencing hearing, committed reversible error
he
when
admitted
relating
evidence
to a
T.V. Guide book found
apartment
victim’s
at the time her body was discovered.
he
Specifically,
claims that
testimony by
police officer
magazine
described T.V. Guide
with
markings
all of
pages
the date
through
that the victim
last
seen
alive, but not thereafter. Wiggins asserts that this testimo
ny was irrelevant and prejudicial.
argues
He
that it had no
value,
probative
no
because
witness testified
regarding
victim’s
of marking
habit
magazines.
T.V. Guide
There-
made,
marks were
known when these
fore,
it is not
says,
he
made.
they were
made,
whom
or even
were
why they
113, 119,
XI.
by one of
testimony
complains
further
impact
friends,
constituted victim
Mary Elgert,
the victim’s
Maryland,
under Booth v.
inadmissible
which was
evidence
(1987). Specifi
2529,
We think it clear that
Elgert’s
Ms.
testimony could in no
event be deemed
impact
victim
evidence under the Court’s
Booth;
decision in
it did not
impact
describe the
crime on the
family,
victim’s
or the family members’ opin-
ions, and characterizations of the crime and the defendants.
State,
33, 72-73,
See Mills v.
310 Md.
14,
n.
XII.
Relying upon
414(e)(4),
Art.
Wiggins attacks his
§
death sentence on proportionality grounds. He claims that
the sentence was excessive and disproportionate to the
imposed
cases,
penalty
considering
similar
both
crime
defendant,
and the
and therefore violated the statute.
Moreover, he
argues that
sentence contravened Articles
16 and 25 of the Maryland Declaration of
Rights,
8th and 14th amendments to the federal constitution.
695, 739,
Tichnell v.
Wiggins says
juries
involving the
in murder cases
imposed
penalty
the death
in the course of a
factor of murder
single aggravating
of de-
compilation
our attention to a
robbery. He invites
of robbery-mur-
information
198 cases
tailed
1, 1978,
similar
involving allegedly
since July
der committed
situations,
either not
penalty
the death
factual
where
sought
imposed.
but not
sought or was
considered the cases
We have
is much
compilation
presents
comparison purposes.
for
State, 318 Md.
269,
v.
Collins
us in
like that considered
(1990),
298-300,
capital prosecution
another
568 A.2d
a robbery.
in the course of
on murder committed
based
There,
and differences were evi
we noted that similarities
review;
for our
but
respective
presented
in the
cases
dent
setting
them out seri
purpose
no useful
perceived
we
each case
atim,
some
facts included about
particular
with
State, 304 Md.
439, 484,
Foster v.
defendant,
citing
each
denied,
306,
reconsideration
(1985),
305 Md.
L.Ed.2d 723
Suffice
414(e)(4) leads us to
formulation of
the “similar cases”
§
in a
imposed
death sentence has been
conclude that
aggravating
circum
number of cases where
significant
during
murder
committed
stance was that
State,
Collins, supra; Foster v.
See
robbery.
course of a
State, State,
v.
supra;
Johnson v.
Colvin
supra;
supra.
See also White
(1984).
prime mitigating Wiggins’s circumstance was lack of prior record, criminal we conclude that the death penalty this case neither excessive nor disproportionate. Nor was aberrant, it arbitrary, capricious, freakish; or and it was imposed not under the passion, influence of prejudice, or because of the existence arbitrary of an factor. Contrary Wiggins’s suggestion, society has not rejected capital punishment for the type murder-robbery committed in case, this considering both the crime and the defendants in light similar cases.
XIII.
Wiggins contends that the Maryland death penalty
statute is unconstitutional
he
required
prove
because was
factors
mitigating
preponderance
of the evidence.
There is no merit to this contention. See Walton v. Ari
zona,
U.S.-,
3047, 3055,
497
110 S.Ct.
ute is constitutionally defective
respect
with
those mitigating circumstances not enumerated in the stat
ute, he
required
to convince the
authority,
evidence,
aby
preponderance of the
not
only
circumstance exists
mitigating
but that
it was
nature.
v.
There is no merit to this contention.
Boyde
See
Califor
nia,
1190, 1196,
494
110
U.S.
S.Ct.
XIV. *27 that the Finally, Wiggins contends trial court erred imposing eighteen-month two concurrent sentences for his theft convictions. He maintains two that these convictions should merged princi- have into his conviction on robbery i.e., ples merger, of that the robbery convictions involved charged theft of the same in the theft counts of property the indictment. The the agreed, pointing State out that thefts were lesser included of Ac- robbery. offenses cordingly, we shall vacate the theft on counts convictions four and of the five indictments. AFFIRMED,
JUDGMENT EXCEPT TO THEFT AS INDICTMENT, 4 COUNTS AND 5 OF THE TO AS WHICH THE ARE JUDGMENTS VACATED.
ELDRIDGE, Judge, dissenting: view,
In my sentencing hearing the evidence at the was find, doubt, insufficient jury beyond for the a reasonable that Wiggins principal degree Kevin was a the first murder of Florence Lacs. I dissent from the Consequently, judgment affirming the of the death imposition penalty. evidence,
When reviewing sufficiency the rele- “whether, question viewing vant is after the evidence in the light most prosecution, favorable to the rational trier of any fact could have found the essential elements of the crime beyond reasonable doubt.” Jackson v. 443 U.S. Virginia, 307, 318-319, 2781, 2788-2789, 99 S.Ct. 61 L.Ed.2d 573 (1979); State, 695, 717, 287 Md. 415 Tichnell v. A.2d (1980). finding 842 The in the principal degree, however, first entirely rests on circumstantial evi- dence. conviction upon circumstantial evidence alone “[A] is not to be sustained unless the circumstances are incon- sistent with any hypothesis reasonable of innocence.” West 197, 211-212, (1988). v. Md. 539 A.2d State, 530, 535-537, A.2d
See also Wilson (1990). at the sentenc- presented 833-834 evidence of fact a reasonable trier hearing permit would ing in the first principal not a hypothesize degree. scheme, the concern statutory proof Maryland
Under the
hearing is differ
capital sentencing
at a
ing guilt required
stage
or innocence
required
guilt
proof
ent from
must
guilt
stage,
At the
or innocence
State
of the trial.
defendant
is
beyond a reasonable doubt
prove
may
guilty
The defendant
be
degree
of first
murder.
guilty
course,
he is a
murder,
though
degree
first
even
or
under
degree,
accessory,
guilty
an
in the second
principal
stage more
doctrine. At the
felony
murder
must
a reasonable
beyond
as the State
show
required,
is
the actual perpetrator
defendant was
doubt that the
*28
degree. Mary
first
He
principal
murder.
must be
27,
Cum.Supp), Art.
(1957,
Repl.Vol.,
1987
1991
land Code
State, 303
Johnson
4-343(e);
413(e)(1);
Rule
Maryland
§
denied,
cert.
1,
(1985),
12
474 U.S.
487, 510,
A.2d
Md.
(1986); Stebbing v.
868,
1093,
The State p.m. 5:00 on approximately died at that the victim theory regard to time expert testimony with Thursday. more consistent with the State was by death advanced Friday had died on eve- that the victim theory defendant’s Certificate, filled out originally as ning. The Death as time of death approximate fixed the expert, State’s sentencing hearing, each evening. At the Friday range estimated that the maximum expert three witnesses 9:00 approximately for a time of death extended back shopping after went which was p.m. Thursday, cards. the victim’s credit with *29 to time of regard with theory of the State’s weakness
The of Edith by testimony further undermined death was to the victim spoken that she had who reiterated Vassar testi- morning.2 Ms. Vassar telephone Friday on over anonymous tele- that she had received an 2. Ms. Vassar also testified must be mistaken phone the caller told her that she call and that however, sentencing hearing, Ms. day of the call. At the about she was not mistaken. Vassar asserted that Ms. the luncheon she and discussed which they fied that afternoon. Thursday had attended on Lacs placed Furthermore, girls testimony of the whose two Wiggins spoken that had the scene testified Wiggins at p.m. p.m. at 5:00 or 5:30 some sheetrock Ms. Lacs about building left ahead of Wiggins that girls The testified approxi employer checked in with his Wiggins them. had to the he been According employer, mately p.m. 5:05 The office was minutes.3 subcontractor’s twenty for gone This apartment. from the victim’s away minutes five about to ransack Wiggins much time give does not sequence time water, to to fill her tub with apartment, bath the victim’s off apartment wiping the entire her, go and to over drown fingerprints. fragile already tends to weaken an which Other evidence consistency the lack of is of circumstantial evidence case by those who concerning clothing Ms. Laos’s testimony which, according to Thursday, her on came in contact with one of Mary Elgert, of her life. day the last wearing light a friends, that Ms. Lacs was Laos’s stated Ms. Eliza- afternoon. Thursday skirt and white blouse blue friend, Saturday on Lane, police told the another beth as 4:00 red dress as late wearing seen Lacs was last Ms. hallway, in the Chentell girls of the Thursday. on One p.m. on p.m. 5:00 Greenwood, approximately that at testified blouse. a red skirt and white Ms. Lacs had on Thursday, jury to the show submitted The victim pictures skirt was charac- The color of the dark blue. the skirt was Detective by as teal and attorney defendant’s terized testimony support cannot conflicting This green. as Crabbs Wiggins was dis- employer Wiggins's testified at 3. Thursday. employer also p.m. from work at 4:45 missed twenty to inform his boss minutes later returned testified that building. At the to the front of the some sheetrock that he had moved trial, majority stage pointed out in the guilt as or innocence gone twenty- for employer had been opinion, testified that thirty-five minutes. five *30 Lacs because she Thursday inference that Ms. died in clothes. Thursday’s found point tended to evidence was discovered which Finally, robbery/murder. in the participation person another belong Wiggins that did not were fingerprints Several these apartment. places prints in the where found are were discovered on They found relevant. were arch, kitchen, and on the archway wall of the front door found on a leading to the bathroom. Others were doorjamb which, along other on the kitchen table with soap box usual items, places had moved from their cleaning been fingerprints, investiga- In addition to the the kitchen. bearing hat Rental Ryder tion also discovered man’s to tie this Truck at the scene. Police were unable emblem and none of the witnesses who testified Wiggins, hat Wiggins testified that had day had seen they wearing this hat. been isolation, and the hat fingerprints
When viewed not, states, a reason- majority “support as the perhaps may in the present that another individual was hypothesis able is added to an apartment____” victim’s When this evidence however, case, circumstantial combination already weak at the leads to the conclusion that the evidence establish, hearing beyond was not sufficient to reasonable doubt, degree. in the first principal was the se, insufficiency per
In addition to the
of the evidence
ground warranting
there is another
a reversal of
death
27, 414(e)(4),to
required by
sentence. This
is
Art.
Court
§
present
Under the
death
proportionality
conduct a
review.
statute,
a death sen
upheld
this Court has never
penalty
case.
tence on
as weak as that introduced
this
evidence
the death
upheld
the numerous cases where we have
sentence,
that the defendant com
question
there was little
degree.
in the first
Evi
principal
mitted the murder as a
confession
supported
findings
dence which
these
included a
State, supra; eyewitness
v.
defendant,
Stebbing
State, 320 Md.
Gilliam v.
incident,
testimony to the
— U.S.-,
denied,
cert.
(1990),
S.Ct.
I vacate the death sentence and would life imposition of a sentence. me state that he concurs
Judge Cole has authorized expressed herein. with views 2d 1377
597 A. PROMENADE TOWERS MUTUAL
HOUSING CORPORATION LIFE COMPANY. METROPOLITAN INSURANCE Term, Sept. 1991. No. Maryland. Appeals Court of 8, 1991. Nov.