Huffington v. State

SMITH, Judge. We shall affirm the conviction and sentence of John Norman Huffington in this, his third trip to this Court, the second after a death sentence. His first trip was reported in Huffington v. State, 295 Md. 1 , 452 A.2d 1211 (1982), where we reversed and remanded for a new trial. Upon the remand after that reversal the case was removed to the Circuit Court for Frederick County for trial.

In Huffington v. State, 302 Md. 184 , 486 A.2d 200 (1985), we rejected his contention that to again try him would place him in double jeopardy. After our per curiam order in that case (but before the filing of the opinion) Huffington was tried in the Circuit Court for Frederick County. A jury convicted him of two counts of first degree murder, breaking and entering, and handgun offenses. The same jury sentenced him to death for each murder.

The case reaches us under the provisions of Maryland Code (1957, 1982 Repl.Vol.) Art. 27, § 414 providing for automatic review by this Court whenever the death penalty is imposed. The facts surrounding the incident leading to Huffing-ton’s conviction are fully set forth in our earlier opinion. We shall here set forth only such facts as are necessary to a clear understanding of each of the issues presented by Huffington in his appeal. We shall consider his contentions seriatim. i.

Refusal to admit the testimony given by Rassa at the trial of Kanaras Deno Kanaras was the alleged accomplice of Huffington in the incidents here in question. Kanaras was convicted by a Kent County jury of felony murder, theft, and daytime housebreaking. See Kanaras v. State, 54 Md.App. 568 , 460 A.2d 61 , cert. denied, 297 Md. 109 (1983). At Kanaras’ trial Stephen Rassa testified in rebuttal as a State’s witness.

Prior to that rebuttal testimony Kanaras had testified that he had been free from drugs for some ⁵⁶⁵ time before the homicides in question. The purport of Rassa’s testimony was that a few days before the incident in question Kanaras was still involved with drugs. Rassa told of a visit made by him and Kanaras to the homicide victims for the purpose of purchasing cocaine. At Kanaras’ trial Rassa testified that Kanaras “said he wouldn’t mind robbing Joe Hudson and killing him.” Rassa said that five days before Hudson and Becker, the victims in the case at bar, were actually killed, when Rassa and Kanaras approached Hudson’s trailer for the purpose of purchasing cocaine, Kanaras entered first armed with a gun and with a knife.

After laying a foundation of unsuccessful attempts to subpoena Rassa as a witness, Huffington offered the record of Rassa’s testimony at the Kanaras trial in Kent County. He sought its admission as prior evidence to establish that Kanaras might have killed the victims in the case at bar. The trial judge denied admission, stating: “The whole thrust of the cases in this area is that the right of cross-examination be fully afforded, and if it has not been afforded, then it is not only a violation of Article 21 of the Maryland Constitution but also before [sic] the amendment to the United States Constitution. It’s clear from the proffered testimony in this case, and I find as a fact, that in the trial in which the Rassa transcript is sought to be used, Mr. Rassa was the State’s witness, and accordingly, to grant your motion I would be depriving the State of its right to cross-examine fully Mr. Rassa in this case, which is a different case from the present case.

The case in which the transcript is from, as I understand it, is the State v. Kanaras rather than the State v. Huffington, and so the situation is entirely different from the situation which caused me to grant the State’s motion in connection with the Bognani testimony. Accordingly, the motion is denied.” There is no dispute here on the issue of Rassa’s availability as a witness. ⁵⁶⁶ The rule applicable to prior testimony was set forth for the Court by Chief Judge Murphy in Crawford v. State, 282 Md. 210 , 383 A.2d 1097 (1978): “Our predecessors have consistently held that testimony taken at a former trial may as a general rule be admitted at a subsequent trial where it is satisfactorily shown that the witness is unavailable to testify. Contee v. State, 229 Md. 486 , 184 A.2d 823 (1962); Bryant v. State, 207 Md. 565 , 115 A.2d 502 (1955); Hendrix v. State, 200 Md. 380 , 90 A.2d 186 (1952). These cases generally recognize that where an opportunity was afforded to the accused to cross-examine the witness at the former trial, there is no violation of the state or federal constitutional right of confrontation.

The rule has generally been applied without distinction between the admissibility of testimony given at a former trial and testimony given at a preliminary hearing since, as Professor McCormick states: ‘If the accepted requirements of the administration of the oath, adequate opportunity to cross-examine on substantially the same issue, and' present unavailability of the witness, are satisfied then the character of the tribunal and the form of the proceedings are immaterial, and the former testimony should be received____’ McCormick, Evidence § 258 (2d ed. 1972). Other text writers are in accord. See 2 Jones on Evidence § 9.22 (6th ed. 1972); 3 Wharton’s Criminal Evidence § 650 (13th ed. 1973).” 282 Md. at 214-15 , 383 A.2d at 1100 . The rule was recognized ninety years ago in a criminal context by the Supreme Court.

See Mattox v. United States, 156 U.S. 237 , 15 S.Ct. 337 , 39 L.Ed. 409 (1895). The Court discussed such testimony in the context of a claim that admission of testimony would violate the constitutional provision relative to confrontation of witnesses: “The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, ⁵⁶⁷ being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case.

To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.” 156 U.S. at 242-43 , 15 S.Ct. at 339-40 , 39 L.Ed. at 411 . On the issue in question see Annot., 15 A.L.R. 495 (1921), and the supplements thereto, 79 A.L.R. 1392 (1932), 122 A.L.R. 425 (1939), and 159 A.L.R. 1240 (1945). Obviously, as pointed out in 15 A.L.R. at 559, there can be no constitutional objection to admission of evidence on behalf of an accused in a criminal proceeding.

The further observation is made that in admitting testimony on behalf of an accused courts generally have followed the rules which they have adopted with respect to permitting or rejecting testimony in favor of the prosecution. On the problem at hand E. Cleary, McCormick’s Handbook of the Law of Evidence, § 254 (3d ed. 1984) states: ⁵⁶⁸ “Usually called ‘former testimony’, this evidence may be classified, depending upon the precise formulation of the rule against hearsay, as an exception to the hearsay prohibition on the one hand, or as a class of evidence where the requirements of the hearsay rule are complied with,' on the other. The former view is accepted generally by the courts, rules, and textwriters; the latter was espoused by Wigmore.” Id. at 759-60. On cross-examination McCormick states in § 255: “More important, and more often drawn in question, is the requirement that the party against whom the former testimony is now offered, or a party in like interest, must have had a reasonable opportunity to cross-examine.

Actual cross-examination, of course, is not essential, if the opportunity was afforded and waived. The opportunity must have been such as to render the conduct of the cross-examination or the decision not to cross-examine meaningful in the light of the circumstances which prevail when the former testimony is offered.” Id. at 761-62. McCormick also mentions another frequent issue in § 256, that of identity of parties: “[T]he natural next step is to recognize, as progressive courts have done, that neither identity of parties nor privity between parties is essential. These are merely means to an end.

Consequently, if it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have, was accorded an adequate opportunity for such examination, the testimony may be received against the present party. Identity of interest in the sense of motive, rather than technical identity of cause of action or title, is the test.” Id. at 765. The importance of cross-examination is explained by Martin, The Former-Testimony Exception in the Proposed Federal Rules of Evidence, 57 Iowa L.Rev. 547 (1972): ⁵⁶⁹ “Given the faith which the Anglo-American adversary system places in the efficacy of cross-examination, it is not surprising that the most important feature of the former-testimony exception is that which requires such testimony to have been given in a situation where an opportunity existed to utilize that truth-testing device. The former-testimony exception to the hearsay rule is unique in this respect, as no other exception makes cross-examination a requirement for admissibility, and it is not usually discussed in connection with evidence admitted under other exceptions.

It was this opportunity to cross-examine which led Wigmore to characterize former testimony as unobjectionable under the hearsay rule, rather than as admissible as one of its exceptions. In order to ensure the reliability of former testimony, the proposed Federal Rules retain the requirement that the opponent be given the opportunity to develop the testimony by cross-examination.” Id. at 553-54. Professor Martin says, “[The] crucial question is whether, given that the opponent can not now cross-examine the witness, the examination on the prior occasion was fairly equivalent to cross-examination in the present situation.” Id. at 556. Fed.R.Evid. 804(b)(1) states: “(b) Hearsay exceptions. — The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. — Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” The issue of cross-examination is discussed in J. Weinstein & M. Berger, 1 Weinstein’s Evidence 11 804(b)(l)[02]: ⁵⁷⁰ “The prime guaranty of reliability in the case of prior testimony or depositions resides in their having been subjected to cross-examination prior to the present trial.

When this condition and the requirement of an oath are met, the character of the tribunal before which the former trial was held is immaterial. ‘If the tribunal was empowered to compel cross-examination, or did in fact compel cross-examination, the prior testimony should be admissible.’ Similarly in the case of depositions, the condition of cross-examination is satisfied if the deposition is taken ‘before an officer authorized by law to take depositions and empowered to compel cross-examination.’ If the opportunity to cross-examine was lacking the prior testimony must be excluded. Even should it be determined that the tribunal conducting the original hearing lacked jurisdiction, admission of the prior testimony should depend on ‘whether the sworn statements of the witness, now dead or unavailable, about the facts of which he had knowledge, were made under such circumstances of opportunity and motive for cross-examination as to make them sufficiently trustworthy to be used in the effort to ascertain the truth.’ “Actual cross-examination is not required, ‘but merely an opportunity to exercise the right to cross-examine if desired.’ Respresentation by the same counsel at both trials is not required. If the party against whom the previous statement is now offered is the party against whom the testimony was previously offered, it is usually compatible with fair practice to make him bear the consequences of any deficiencies in the cross-examination or decision not to exercise that right. But situations may arise where because of particular circumstances, the existence of an opportunity to cross-examine would not have resulted in any testing of the reliability of the previous statement, where the conduct of the cross-examination or the decision not to cross-examine is not ‘meaningful in the light of the circumstances which prevail when the former ⁵⁷¹ testimony is offered.’ ” Id. 804-74 to -76.

(Emphasis in original.) The case relied upon by the State that is closest to the factual situation before the Court is Commonwealth v. Meech, 380 Mass. 490 , 403 N.E.2d 1174 (1980). There the defendant attempted to introduce at his trial testimony given by a witness for the prosecution before the grand jury. The court said: “The common model for the exception is one where the prior testimony was given by a person, now unavailable, in a proceeding addressed to substantially the same issues as in the current proceeding, with reasonable opportunity and similar motivation on the prior occasion for cross-examination of the declarant by the party against whom the testimony is now being offered.... “The usual formula would not be fulfilled if grand jury testimony were subsequently offered against the indicted defendant, for he would not have had a chance to cross-examine. See United States v. Fiore, 443 F.2d 112 , 115 & n. 3 (2d Cir.1971), cert. denied, 410 U.S. 984 [ 93 S.Ct. 1510 , 36 L.Ed.2d 181 ] (1973).

Nor is it nominally fulfilled where, as here, the defendant offers the testimony against the Commonwealth, for the Commonwealth was not in the position of a cross-examiner at the grand jury hearing; rather it was presenting the testimony through direct examination. However, it has been recommended by commentators, and on occasion held by courts, that a party’s having tendered the testimony on direct should serve as the equivalent for the present purpose of his having cross-examined upon it. There is some support for this view as to grand jury testimony on the theory, perhaps, that the government should be considered bound to the trustworthiness of the evidence it chose to present to the grant jury as a basis for an accusation of crime. (See, however, note 12 infra.) “But even if the proposition were accepted that the defendant might in some circumstances use the grand jury testimony of a now unavailable witness at trial, ⁵⁷² McDonald’s testimony would still be of dubious acceptability. ■ For it is an important ground of this hearsay ‘exception’ that there be substantial identity between the issues at the earlier and later proceedings — this to ensure ‘that the former handling of the witness was the equivalent of what would now be done if the opportunity were presented.’ Where this similarity is absent, the testimony will not be fortified in the material respect — that is, in its relation to the particular proposition sought to be proved in the later proceeding.

See United States v. Wingate, 520 F.2d 309, 316 (2d Cir.1975); State v. Augustine, 252 La. 983, 999 [ 215 So.2d 634 ] (1968). The problem is encountered here. The Commonwealth’s purpose in examining McDonald before the grand jury was not to inquire into the defendant’s criminal responsibility; it was to provide eyewitness proof about the defendant’s possession of the supposed murder weapon in the vicinity of the crime near the time of death.” 380 Mass, at 494-96, 403 N.E.2d at 1177-78 . United States v. Atkins, 618 F.2d 366 (5th Cir.1980), is instructive.

The court there said: “Admission of Inglet’s testimony, given during government cross-examination of him in a December 19, 1978, James[ 1 ] hearing, also was not erroneously denied. Fed. R.Evid. 804(b)(1) permits admission of former testimony if the declarant is unavailable at trial and ‘if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.’ The defendant sought to use Inglet’s testimony that his source of cocaine in Miami was a man named Robert, whose last name he did not know, in order to establish that Inglet was dealing with someone other than Robert Atkins, whose name was known to Inglet. Defense counsel for ⁵⁷³ Atkins did not participate in the James hearing, and the hearing did not concern Atkins but only some of his codefendants. In addition, the government did not contend that Atkins was the Miami supplier being discussed by Inglet in the James hearing but rather that he was the contact man.

Thus, the government did not have the motivation to question Inglet in order to make him acknowledge that the Robert of whom he spoke in the James hearing was in fact Atkins. Accordingly, Inglet’s former testimony did not meet the requirements of 804(b)(1) for admission, and his challenge to its exclusion by the judge is without merit. See, e.g., Peterson v. United States, 344 F.2d 419, 425 (5th Cir.1965).” 618 F.2d at 373 . We find Atkins persuasive.

It follows along with the authorities we have heretofore quoted. When the State presented the testimony of Rassa at Kanaras’ trial it was in a different context and for a different purpose from that for which Huffington desires to offer it in the case at bar. 2 The motivation on the part of the State for questioning Rassa was entirely different at that trial from the motivation the State would have had to question Rassa on cross-examination at Huffington’s trial had Rassa been present as a live witness to offer the testimony sought to be introduced. Much has been written on the importance of ⁵⁷⁴ cross-examination. In the words of the federal rule the party against whom the testimony is now offered did not have at the time of Kanaras’ trial a similar motive in developing the testimony of Rassa.

Given the wide discretion which trial judges have in admitting evidence, we find no error on the part of the trial judge, ii. Mitigating factor of not being the sole proximate cause of the victim’s death Code (1957, 1982 Repl.Vol.) Art. 27, § 413(g)(6) provides that a mitigating factor which a sentencing authority may find to exist is that the act of the defendant was not the sole proximate cause of the victim’s death. Huffington contends that because his cohort, Kanaras, was convicted of felony murder in the death of Becker (one of the individuals found to have been murdered by Huffington), then Huffing-ton is entitled as a matter of law to an instruction in his favor on this mitigating factor. There is both a short and a somewhat longer answer to Huffington’s contention.

The short answer is that at no time did he request such an instruction. Not having requested such an instruction, the point is deemed waived. Maryland Rule 885. A somewhat longer answer is that the sentencing authority, in this instance the jury, would be expected to return its finding based upon the evidence adduced before it.

Evidence of Kanaras’ conviction was not adduced. Had it been, the finding made by the jury at Kanaras’ trial would not be binding upon the jury at Huffington’s trial because it would not be based upon the same evidence. The real answer is that contained in Evans v. State, 304 Md. 487 , 499 A.2d 1261 (1985), where Judge Eldridge said for the Court: “[W]e conclude that the General Assembly intended the words ‘proximate cause’ to apply only to direct physical causes of the victim’s death, and not to acts of a principal in the second degree or an accessory before the fact ⁵⁷⁵ which aided or abetted the act directly causing death.” 304 Md. at 534 , 499 A.2d at 1285 . Footnote 16 of that opinion provides further clarification: “The type of situation which the Legislature likely had in mind by the language of § 413(g)(6) is illustrated by the following.

If the perpetrator inflicts a serious wound under circumstances that would justify a conviction for murder if death should ensue, and death does ensue partly by reason of negligent medical treatment or refusal of the victim to accept medically recommended care, the perpetrator will not be excused from liability for the murder. See DeVaughn v. State, 232 Md. 447 , 194 A.2d 109 (1963), cert. denied, 376 U.S. 927 , 84 S.Ct. 693 , 11 L.Ed.2d 623 (1964). Nevertheless, in a capital punishment case there would exist as a mitigating factor an additional proximate cause of death. “We need not in this case, however, explore the range or scope of acts which might fall within the language of § 413(g)(6). We go no further than our holding that the act of a principal in the second degree or accessory before the fact is not what the Legislature had in mind.” 304 Md. at 534-35 , 499 A.2d at 1286 .

Huffington simply was not entitled to such an instruction. iii. The presentence investigation report Code (1957, 1982 Repl.Vol., 1984 Cum.Supp.) Art. 41, § 124(d), adopted by Ch. 297 of the Acts of 1983 and effective July 1, 1983, provides: “In any case in which the death penalty is requested under Article 27, § 412, a presentence investigation, including a victim impact statement, shall be completed by the Division of Parole and Probation, and shall be considered by the court or jury before whom the separate sentencing proceeding is conducted under Article 27, § 413.” ⁵⁷⁶ Code (1957, 1982 Repl.Vol.) Art. 27, § 413(c)(l)(iv) states that evidence admissible in a capital sentencing proceeding includes “[a]ny presentence investigation report.” Huffington contends that the trial court erred in admitting two portions of the presentence investigation report. The first concerns that portion of institutional history pertaining to infractions not leading to criminal prosecutions committed while Huffington was incarcerated prior to trial. The second pertains to the admission of Huffington’s version of the facts pertaining to his activities at the times here pertinent.

For reasons to be hereafter developed we find Huffing-ton’s contentions to be without merit. There is another reason for overruling his contentions, however. The presentence investigation came in without objection. It is true that when the presentence investigation was being considered by the trial judge Huffington made specific objections to the portions of the report to which he now objects.

However, the report was received in evidence without objection on behalf of Huffington. The record reflects: “Cassilly [Assistant State’s Attorney]: Excuse me, Your Honor, could we ... now that we’ve finally gotten our presentence put together, can we distribute this to the Jury at this point? “Court: You’ll want to put that in? Yes. “Cassilly: Yes, please. “Drew [for the defense]: I have no objection, Your Honor, if you want____ “Court: All right, it will be received and may be distributed to the Jury. (St.Ex. 5 admitted into evidence.

PSI, with deletions; photostat.) “Drew: Your Honor, I don’t have any problem with it being distributed but I’d ask that the Court instruct the Jury not to begin reading it or anything until .... I’d like them to pay attention to my presentation rather than reading the PSI.” ⁵⁷⁷ a. The institutional history The section of the presentence investigation report pertaining to institutional history states: “On or about 12/6/83 the defendant, John Norman Huffington was cited for 1) refusing to obey a direct order and 2) creating a security threat. The defendant received ten days in disciplinary isolation for each of those infractions. “Evidently the defendant offered resistance to Deputy Minnick while being searched.

As to the second infraction the defendant apparently interfered with the searching of other inmates in the cell block.” Bartholomey v. State, 267 Md. 175 , 297 A.2d 696 (1972), involved the Maryland death sentence cases remanded to us by the Supreme Court of the United States for reconsideration in the light of its holding in Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972). In discussing the procedure to be followed by trial judges in re-sentencing those defendants, Chief Judge Murphy said for the Court: “[T]o aid the sentencing judge in fairly and intelligently exercising the discretion vested in him, the procedural policy of the State encourages him to consider information concerning the convicted person’s reputation, past offenses, health, habits, mental and moral propensities, social background and any other matters that a judge ought to have before him in determining the sentence that should be imposed. Skinker v. State, 239 Md. 234 , 210 A.2d 716 (1965); Scott v. State, 238 Md. 265 , 208 A.2d 575 (1965); Costello v. State, 237 Md. 464 , 206 A.2d 812 (1965); Driver v. State, [ 201 Md. 25 , 92 A.2d 570 (1952)]; Baker v. State, [ 3 Md.App. 251 , 238 A.2d 561 (1968) ]. The sentencing judge may, but need not, obtain a presentence report under Article 41, § 124(b).

Of course, the sentencing judge may take into consideration the defendant’s conduct after the offense was committed, viz., he may consider evidence of events occurring after the date ⁵⁷⁸ of the original sentencing to whatever extent he may deem necessary. North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969); Williams v. New York, 337 U.S. 241 , 69 S.Ct. 1079 , 93 L.Ed. 1337 (1949); Purnell v. State, [ 241 Md. 582 , 217 A.2d 298 (1966)]; Gatewood v. State, 15 Md.App. 450 , 291 A.2d 688 (1972).” 267 Md. at 193-94 , 297 A.2d at 706 . More recently in Logan v. State, 289 Md. 460 , 425 A.2d 632 (1981), Judge Digges said for the Court: “In considering what is proper punishment, it is now well-settled in this State that a judge is not limited to reviewing past conduct whose occurrence has been judicially established, but may view ‘reliable evidence of conduct which may be opprobrious although not criminal, as well as details and circumstances of criminal conduct for which the person has not been tried.’ Henry v. State, 273 Md. 131, 147-48 , 328 A.2d 293, 303 (1974).” 289 Md. at 481 , 425 A.2d at 643 . We are not concerned here with crimes, as in Scott v. State, 297 Md. 235 , 465 A.2d 1126 (1983), with which an accused was charged but had not yet been convicted.

We believe that under our prior cases this institutional history was properly admissible. b. Huffington’s statement It is customary in a presentence investigation for the defendant’s version of the relevant facts to be set forth. The events leading to the death of the victims apparently occurred in the early morning hours of May 25, 1981. Huffington has summarized in his brief the relevant evidence adduced at trial.

That pertaining to the critical time is: “At 2:00 a.m., Appellant, Kanaras, Hudson and Becker all left the nightclub and drove to the trailer. Once inside the trailer, Appellant paid Hudson $275.00 for three and one-half grams of cocaine. At that point, all concerned had ingested various quantities of cocaine and marijuana. ⁵⁷⁹ “After completing the transaction, Appellant and Kanaras returned to Appellant’s apartment and ingested more cocaine. Appellant then began making telephone calls in an effort to find a buyer for additional cocaine retained by Hudson.

Appellant ostensibly found a buyer, and had Kanaras drive him back to Hudson’s trailer. Arriving between 3:30 and 4:00 a.m., they picked up Hudson and drove him to the rural Wheel Road area of Harford County. According to Kanaras, after the three men exited the car Appellant shot and killed Hudson and removed a quantity of cocaine from the latter’s pocket. “Appellant then turned the gun on Kanaras, forcing him to drive back to the Hudson trailer for the purpose of stealing money. Once inside the trailer, Appellant killed Diane Becker by striking her on the head with a vodka bottle and then stabbing her some 33 times with a knife.

Under duress, Kanaras then helped Appellant steal a large amount of cash and Becker’s purse, which contained narcotics and paraphernalia. “Kanaras’ testimony continued that for the next several hours he remained with Appellant, helping him to dispose of evidence and to establish an alibi by attending a local ‘fiddler’s convention.’ Kanaras remained with Appellant and refrained from informing anyone of the killings even after the disposal of the gun and knife used in the homicides because he remained ‘scared’ of Appellant.” The version obtained by the Parole and Probation agent as set forth in the presentence investigation report was as follows for the critical period: “About 1:45 a.m. the defendant and Kanaras left the Golden 40 and followed Hudson’s car to an Edgewood 7-11 Store and then to Hudson’s Motorhome. Diane Becker walked over to their car and asked them to wait until the people in the other car left. After the other vehicle left, the defendant and Kanaras entered the motorhome and all four (4) sat down. Hudson and the defendant discussed a future cocaine deal and Kanaras ⁵⁸⁰ bought some cocaine from Hudson, after which Huffing-ton and Kanaras left.

They drove back to Huffington’s apartment and both went inside. Kanaras allegedly wanted to party, but the defendant said he was tired and wanted to go to bed. Kanaras then left and the defendant went to sleep. “On 5/25/81 at about 9 a.m., Kanaras returned to Huffington’s apartment and asked him to go partying. After showering, the defendant and Kanaras did some cocaine and drove around, heading toward the Fiddler’s convention in Cecil County____ “About 6:30 p.m.

Kanaras called him asking him to cover for him, to tell anyone who asked, that they were at the Fiddler’s Convention all night. The defendant claimed that at that time he did not know why Kanaras asked him to cover for him---- “The defendant stated that he protected Kanaras with an alibi. He claimed that Kanaras never explained why he needed an alibi. The defendant denied participation in the crimes and denied his guilt to the charges.

When asked if he had knowledge of or a hunch who committed the offense, the defendant said, T couldn’t say.’ He stated that he feels ‘fed up’ and has ‘lost a lot of respect for the judicial system.’ ” Relying upon Estelle v. Smith, 451 U.S. 454 , 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981), Huffington claims that the admission of his statement violates his rights under the Fifth Amendment to the United States Constitution as delineated in Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). He makes no contention relative to Sixth Amendment rights. In Estelle the Court said, “We can discern no basis to distinguish between the guilt and penalty phases of respondent’s capital murder trial so far as the protection of the Fifth Amendment privilege is concerned.” 451 U.S. at 462-63 , 101 S.Ct. at 1873 , 60 L.Ed.2d at 369. The Court further said: “ ‘Volunteered statements ... are not barred by the Fifth Amendment,’ but under Miranda v. Arizona, su ⁵⁸¹ pra, we must conclude that, when faced while in custody with a court-ordered psychiatric inquiry, respondent’s statements to Dr. Grigson were not ‘given freely and voluntarily without any compelling influences’ and, as such, could be used as the State did at the penalty phase only if respondent had been apprised of his rights and had knowingly decided to waive them.

Id., at 478 [ 86 S.Ct. at 1630 ]. These safeguards of the Fifth Amendment privilege were not afforded respondent and, thus, his death sentence cannot stand. 13 We simply do not find Estelle or Huffington’s Fifth Amendment rights applicable to the statement in the case at bar. We have set forth Huffington’s version of the evidence and the statement in question at some length in order that there may be no misunderstandings. It is true that Huffington in his statement indicated that he had been in the company of Kanaras and of the victims, Diane Becker and Joseph Hudson.

However, according to the statement given by Huffington, at the time when the alleged crimes were being committed he was home by himself and asleep. We find no infringement of Huffington’s rights against self-incrimination. iv. Victim participation Code (1957, 1982 Repl.Vol.) Art. 27, § 413(g)(2) provides that a mitigating factor shall be that “[t]he victim was a participant in the defendant’s conduct or consented to the act which caused the victim’s death.” Huffington contends that Hudson was a participant in the conduct leading to his death and hence Huffington was entitled as a matter of law to this mitigating factor. Art. 27, § 413(g), enacted by Ch. 3 of the Acts of 1978, is modeled after § 210.6(4)(c) of the Model Penal Code.

The latter states relevant to mitigating factors, “The victim was a participant in the defendant’s homicidal conduct or con ⁵⁸² sented to the homicidal act.” There are no relevant cases, annotations, or legislative references concerning either section which we have been able to find. Accordingly, the commentary note to the Model Code provision is of importance. II Model Penal Code and Commentaries, § 210.6 (1980) states: “Paragraph (c) addresses the case where the victim is partially responsible for his own death. This circumstance obtains chiefly in two kinds of situations.

First, there are occasions in which the defendant and his victim are engaged jointly in an activity highly dangerous to each. If each person’s participation depends upon the cooperation of the other, a murder conviction may lie for the death of one actor, even though both share responsibility. An example may be the case of Russian roulette, at least where the defendant actually fires the shot that kills his partner. A second situation within the scope of Paragraph (c) is the true mercy killing.

There the defendant’s homicidal act may not have occurred had the victim not consented to it. In either of these contexts, the conduct of the victim in bringing about his own death deserves consideration as a mitigating factor in assigning a death sentence.” Id. at 140-41. Huffington contends: “Hudson’s activity falls within the first situation. Accompanying known drug dealers to a rural area in the middle of the night has much in common with ‘Russian roulette’ — the chance of becoming a victim of crime in that circumstance is probably better than one in six.

Hudson’s activity was illegal, foreseeably dangerous, and very much a part of Appellant’s conduct. Absent the victim’s participation in this illegal and dangerous activity, there would have been no murder. The mitigating factor should have been returned and considered.” (Emphasis in original.) Kanaras testified as to Hudson’s death: ⁵⁸³ “Ah, I parked the car, and where the car was parked it wasn’t too much room on each side of the road, it was like a slight embankment on one side and an embankment on the other side, so two people really couldn’t fit together coming out of the car, so I got out of the driver’s side of the car and Joe Hudson got out of the passenger side of the car, and we met at the — the back of the car, and John Huffington was right behind too, about three or four steps, and as we walked up to the house, that’s when I heard these shots — -four or five shots rang out, and I saw Joe Hudson fall — fall to the ground to his — on his side, and he rolled — he rolled over .... ” This was the evidence before the jury. It does not make Hudson out as a participant in Huffington’s conduct which caused Hudson’s death.

According to the testimony Hudson and Huffington were joint participants and co-conspirators in an alleged drug sale. The conduct which caused Hudson’s death related to Huffington’s carrying and concealing a loaded pistol and the firing of such pistol at Hudson’s back. It is beyond the stretch of anyone’s imagination to say that Hudson participated in this conduct. We have recently stated, “It is the accused’s burden to prove, by a preponderance of the evidence, the existence of a mitigating circumstance. [Section] 413(g); Tichnell v. State, 287 Md. 695, 730 , 415 A.2d 830, 848-49 (1980).” Stebbing v. State, 299 Md. 331, 361 , 473 A.2d 903, 918 (1984).

In the case at bar Huffington failed to carry his burden concerning proof of the mitigating factor that Hudson participated in the acts causing his death. Moreover, the issue was not presented to the trial court. Hence, it is deemed waived. Rule 885. v. Arbitrariness in seeking the death penalty At one point in the proceedings Huffington proffered a guilty plea in exchange for a life sentence.

Huffington asserts that defense counsel was “under the impression that the State had conditionally accepted the offer,” but then rejected it when the parents of Becker found it unac ⁵⁸⁴ ceptable. Huffington moved to strike the notice of intention to seek the death penalty, contending consideration of the wishes of the family made this an arbitrary factor. He relies upon Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), and Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972). The State responds that it “had already made [the] decision [to seek the death penalty], given notice to [Huffing-ton], and proceeded to trial prior to the alleged ‘arbitrary’ action.” It contends that the feelings of victims’ families are legitimate considerations and that in any case it is not bound to accept a proposed plea agreement.

It further asserts: “In this case the Court at sentencing invoked a novel procedure when it allowed the defense to place plea negotiations before the sentencing jury and argue that the State’s consideration thereof should be a mitigating factor. In other words, the jury was allowed to determine whether the State’s response to the defense’s offer was some indication that the death penalty was not appropriate in this case. The State protested such action below and it is the State’s position here on appeal that this procedure gave Appellant more than he was entitled to.” In Calhoun v. State, 297 Md. 563 , 468 A.2d 45 (1983), the accused mounted an attack upon our death sentence statute based upon what he called the prosecutor’s “unbridled exercise of discretion” under Art. 27, § 412(b). We considered Gregg and Furman and concluded: “Absent any specific evidence of indiscretion by prosecutors resulting in an irrational, inconsistent, or discriminatory application of the death penalty statute, Calhoun’s claim cannot stand.

To the extent that there is a difference in the practice of the various State’s attorneys around the State, our proportionality review would be intended to assure that the death