Hurley v. State

ALPERT, Judge. The last time anyone saw Catherine Patricia Hurley (nee White) was on Thursday, August 11, 1983, at approximately 6:45 in the evening. The last person to be seen with her at that time was her estranged husband, the appellant, William Francis Hurley. She has disappeared without a trace.

A week after her disappearance, appellant was arrested by the Montgomery County Police Department and charged with first and second degree murder and manslaughter in connection with thb disappearance of his wife. He was tried by a jury sitting in Montgomery County (Sanders, J., presiding) and was found guilty of manslaughter. He was ⁵⁴³ sentenced to ten years incarceration under the jurisdiction of the Division of Correction. On appeal, Mr. Hurley claims that: 1.

There was insufficient evidence of the corpus delecti to support a conviction for manslaughter; 2. He was deprived of his right to a fair and impartial jury; 3. The court erred in refusing to permit him to produce character evidence concerning reputation for truth and veracity; and 4. The court contravened his right to remain silent when it allegedly enhanced his sentence for refusing to disclose the whereabouts of his wife’s body.

Perceiving no reversible error, we affirm his conviction and sentencing. In order to discuss the first issue, however, we must set forth in detail the facts in this case as they were developed at trial. The evidence consisted of testimony from a variety of witnesses, appellant’s pre-trial statements, exhibits of the victim’s personal effects and photographs of appellant’s office, as well as stipulations. FACTS Catherine Patricia Hurley married appellant, William Francis Hurley, in 1969.

Three children were born unto the marriage — Jack, Danny and Katie. The Hurleys separated in 1981 and Catherine was given custody of the children. Appellant was ordered to pay child support, alimony and the mortgage on the family home at 14601 McClintock Road in Glenwood, Maryland. After the separation and until August 11, 1983 Catherine Hurley lived at this address with the children.

At the time of their mother’s disappearance, Jack was twelve, Danny was eight, and Katie was five and one-half years old. In 1983 appellant lived in a townhouse in Rockville with his girlfriend, Amy Snively. He was self-employed and owned a janitorial and cleaning business in Rockville, Maryland. ⁵⁴⁴ On Thursday, August 11, 1983 Catherine worked for her father, Dr. Merton White, at his office in Silver Spring, Maryland, for several hours. Before leaving work she requested and received her paycheck.

She needed the money, she said, because she was taking the children to the beach that weekend. Her son Danny was already there with his grandmother and she was taking Katie with her that night. Jack was to work with his father over the weekend. She left in the company of her daughter, Katie, and appeared to be happy and optimistic.

Catherine left the office that day and went to appellant’s townhouse in Rockville. He met her outside and she followed him to his office. They went inside while Katie remained in her mother’s car, a Chevrolet station wagon. After a short time, Katie went inside the office to use the bathroom; she then returned to her mother’s car.

Shortly thereafter, she heard a scream which she believed to be her mother’s, so she alighted from the car and peeked in a window where she saw her mother on the floor; however, all she saw were her feet and shoes and a man’s feet and shoes. Katie got back in the car and a little later appellant left the office. According to appellant in his pre-trial statement, Catherine allegedly stayed behind to make a phone call. She has never been seen or heard from since that time.

Upon leaving his office, appellant took Katie to his home in Rockville and explained that she would be going to the ocean with him and Jack instead of her mother. He stayed about ten minutes and left. At various times during the investigation, he stated that he left: (1) to return to the office to do paperwork; (2) to check on jobs in the Rockville area; or, (3) to go to his wife’s to get more clothes for the children at which time he decided to take her car and put it into “voluntary repossession” with Rockmont Chevrolet, a dealer in Rockville. Appellant eventually did arrive at the office, where he was met by two employees; one, Johnny Carroll (“Carroll”), ⁵⁴⁵ stayed to help him move furniture and straighten up.

Carroll then discovered that a tire on appellant’s truck was leaking air. After changing the tire, appellant and Carroll left to pick up Jack at Joe White’s (Catherine’s brother). Appellant, Carroll and Jack returned to appellant’s townhouse and went to sleep. Then, on Friday, August 12, 1983, according to Carroll, he and appellant left the townhouse early in the morning, around 6:00 A.M., to get the flat tire fixed.

They stopped at an Exxon Station, but since it had just opened no one was available to fix the tire. They then went to appellant’s office to wash the truck since there was a lot of clay-like mud on the front of the truck. Carroll testified that appellant, when asked about the mud, explained that he had been run off the road and the truck was muddy as a result. Appellant, again according to Carroll, then stated he had to go to Rockmont Chevrolet to get a vehicle serviced but that Carroll should try to get the tire fixed at the College Plaza Shell Station and meet him there later.

Carroll went to the Shell Station but could not get the tire repaired; he met appellant at the station when he saw appellant walking from the direction of Rockmont Chevrolet. Appellant and Carroll then went to Stidham Tires in Rockville to get the tire fixed and to the Montgomery Donuts to get donuts for the ride to the beach. According to Hurley’s statement to the police, he and Carroll got up Friday morning, about 6:45 and went to Stidham Tires to get the tire fixed but that Stidham was not yet open, so he and Carroll waited for them to open. Hurley told police that once they opened he left Carroll at Stidham Tires with the flat and took his truck to Rockmont Chevrolet to move his wife’s car inside their gates.

He moved her car, got into his car, picked up Carroll at Stidham Tires, stopped for donuts, and returned to the townhouse to pick up Amy, Jack and Katie. He denied ever washing the truck Friday morning. ⁵⁴⁶ At trial employees of the Exxon and Shell Service Stations confirmed Carroll’s testimony that these stops were, in fact, made, thus contradicting appellant’s statement' to the police. Also contradicting appellant’s statement, Daniel Yeatman, an employee of Stidham Tires, testified that appellant was present the entire time they repaired the tire. Daniel Rigenbach, part owner of Motor Works, Inc., a business located in the same industrial park as appellant’s, testified that he saw appellant and Carroll washing appellant’s truck Friday morning around 6:30.

Rigenbach confirmed Carroll’s testimony as to appellant’s explanation for the mud on the truck. After repairing the tire, Carroll and appellant returned to the Rockville townhouse to pick up Jack, Amy and Katie. At the ocean they spent Friday cleaning cottages. On Friday night appellant went to his in-laws’ cottage to pick up Danny; when he arrived Mrs. White (Catherine’s mother) advised him of Catherine’s disappearance and refused to give him Danny.

On Saturday, August 13, 1983, Catherine’s father found appellant, Carroll, Jack, Katie and Amy at one of the cottages. He confronted appellant with Catherine’s disappearance. Appellant denied any knowledge of her whereabouts. When Dr. White stated that Joe had found Catherine’s car at Rockmont Chevrolet, appellant said that he had no idea how it got there but that he did not think that it had been repossessed since he only missed one payment.

When appellant returned to the campgrounds where they were staying, he had a message to call the Delaware Police. The police told him to call a Detective Livesay in Howard County, Maryland. Appellant told the Montgomery County police he believed he was to call the detective when he returned to Rockville on Sunday. On Sunday, August 14th, appellant, Amy, Jack, Katie and Carroll returned to Rockville where they were met by Officer Simmons of the Montgomery County police.

Officer Simmons placed a call to the Howard County police for ⁵⁴⁷ appellant. He spoke to Detective Livesay and arranged to meet with the detective at his office. He told Detective Livesay and a Montgomery County detective that he last saw Catherine Thursday night at his office where he gave her four hundred ten dollars support money in cash. He told the detectives that he asked her if he could take Jack and Katie to the ocean with him and for an extended vacation and that she consented.

He also stated that she stayed behind to make a phone call and that in order to leave he had to move her car. At trial several witnesses testified to seeing Catherine’s car at appellant’s office on Thursday; they, however, indicated that in order to leave it was not necessary for appellant to move her car. Before meeting with appellant on the 16th, the Montgomery County police discovered Gary Flemming of Rockmont Chevrolet, who told them that when he arrived at work Friday, August 12, he saw Catherine Hurley’s car sitting on the lot and that appellant was sitting in it. Flemming also told the police that appellant had asked him not to say anything about seeing him Friday morning and had called him again on Monday urging him not to say anything about seeing appellant.

Flemming testified that appellant told him he was “voluntarily repossessing” the car since his wife was “raping” him financially. Appellant met again with the police on Tuesday morning at his office; during this meeting Carroll arrived and was separately interviewed. In the middle of this interview, appellant excused himself and spoke to Carroll where he, according to Carroll, told Carroll not to mention seeing Catherine at the office the previous Thursday. Later that week, on Thursday, August 18th, appellant contacted the police and told them that he had not been honest about Catherine’s car.

Finally, on the evening of August 18th, appellant spoke to the police again, this time at the police station. Again he gave them a statement; portions of this statement were played to the jury. In it appellant told the police that in his ⁵⁴⁸ first statement he lied about how Catherine’s car got to Rockmont Chevrolet. He told them that when he left the townhouse after dropping Katie off, he went to check on jobs.

He was also worried about clothes for the children so he went to the McClintoclc Road address to pick up more clothes. He further stated that when he arrived at the house no one was home; he then decided that he would take Catherine’s car to Rockmont and “voluntarily repossess” it since she would not need it because he would have Jack, Katie and Danny. He stated that he then checked to see if his key worked, when it did he moved his car one-half mile down the road and walked back to get her car. He took the car from the driveway and delivered it to Rockmont Chevrolet.

He left the car there, went to Montgomery Donuts, and as he was about to call a cab he encountered a man who was going to Olney, Maryland; he hitched a ride with him as far as Georgia Avenue and Route 108. He then walked one block and went to a 7-11 Store to call a cab, whereupon he said he encountered a gentleman going to Westminster who dropped him off at his truck in Glenwood. He then left Glenwood and eventually arrived at the office. He told the police that when he was encountered by his father-in-law on Saturday as to Catherine’s whereabouts or as to how the car got to Rockmont Chevrolet, he was intimidated and startled.

He offered this as the reason he denied any knowledge of his wife or her car. He also admitted to disposing of the keys to Catherine’s car while at the beach because “he just didn’t want any part of it.” He told them about moving the car on Friday morning before leaving for the beach; however, he never mentioned running into Gary Flemming at Rockmont Chevrolet, and he denied washing his truck Friday morning. When he told of his conversation with Catherine Thursday evening, he referred to it as low-key and one of the best they had ever had; he could not explain the fact that Katie heard a scream. The State also produced evidence of Catherine’s character and reputation.

They presented several witnesses who testified to her devotion to her family, to the fact she had ⁵⁴⁹ never before disappeared without explanation and to the improbability that she would have left at that time. Furthermore, they provided expert testimony regarding appellant’s financial situation which was described as “desperate.” Rodger Frankel, an attorney who qualified as an expert on bankruptcy, testified that appellant’s budget proposal 1 which made no provision for mortgage, alimony or child support payments was unrealistic and not likely to be accepted by his creditors. Finally, the prosecutor read into the record a stipulation that Catherine Patricia Hurley never cashed the check she received from her father on August 13, nor had there been any activity on her credit cards or bank accounts since that day. I. Appellant contends, initially, that the State failed to produce sufficient evidence of a corpus delicti in this case.

Appellant correctly states the law when he argues that in a homicide prosecution, there must be proof of a corpus delicti, i.e., proof that the victim is dead and that the death occurred under circumstances which would indicate that it was caused criminally. We said in Lemons v. State, 49 Md.App. 467 , 433 A.2d 1179 (1981), cert. denied, 292 Md. 13 (1981), that: In a homicide case the proof of the corpus delecti is sufficient if it establishes the fact that the person for whose death the prosecution was instituted is dead, and that the death occurred under circumstances which would indicate that it was caused criminally by someone. Id. at 473, 433 A.2d 1179 (quoting Jones v. State, 188 Md. 263, 272 , 52 A.2d 484 (1947)). Appellant relies on the State’s failure to disclose “one shred of evidence as to the presence of [the victim’s] body in spite of thousands of man hours of police work,” and on the lack of any scientific or forensic proof of foul play. ⁵⁵⁰ Unfortunately for appellant, the State is not limited to the type of evidence available simply because the instant case is a homicide prosecution.

In Lemons we noted that our courts had previously indicated that “independent evidence of the corpus delicti may be circumstantial in nature when direct evidence is not available,” even where the circumstantial evidence applies to the fact of death. Lemons, 49 Md.App. at 486 , 433 A.2d 1179 (quoting Miller v. State, 251 Md. 362, 382 , 247 A.2d 530 (1968); Franklin v. State, 8 Md.App. 134, 140, 258 A.2d 767 (1969), cert. denied, 257 Md. 733 (1970)). In Lemons , we reversed a murder conviction where, as here, the victim’s body was never produced. Lemons involved corroboration of a confession wherein the appellant confessed to killing a waitress and disposing of her body in ways too gruesome to mention here.

Lemons, like appellant herein, argued that there was insufficient proof of the waitress’s death or his criminal conduct. We agreed. Unlike the instant case, however, we noted that (1) there was no evidence of “any arguments, threats, or harsh words at any time between appellant and his alleged victim”; (2) that there was no evidence that the victim “disappeared”; and (3) absent an unsuccessful attempt to check with the Social Security administration “the record [was] devoid of any efforts by the state to locate the victim.” 49 Md.App. at 487-88 , 433 A.2d 1179 . Our decision in Lemons and here — that failure to recover the victim’s body is not fatal to the State’s case in a homicide prosecution — is in accord with other states that have addressed a similar situation.

As the California Court of Appeals succinctly stated: “The fact that a murderer may successfully dispose of the body of the victim does not entitle him to acquittal. That is one form of success for which society has no reward.” People v. Manson, 71 Cal.App.3d 1 , 139 Cal.Rptr. 275, 298 (1977). We concur with this view and with the admonition espoused by the Appellate Division of New Jersey’s Superior Court when it stated ⁵⁵¹ that “successful concealment or destruction of the victim’s body should not preclude prosecution of his or her killer where proof of guilt can be established beyond a reasonable doubt.” State v. Zarinsky, 143 N.J.Super. 35 , 362 A.2d 611, 621 , cert. denied, 75 N.J. 101 , 380 A.2d 685 (1976). Numerous other states have affirmed homicide convictions where no body was ever produced, but the evidence proved sufficient for proof of the corpus delicti.

See State v. Lewis, 125 So. 802 (Ala. 1930) (eyewitness, bone fragments found, blood splotches and stains and proof that body of deceased burned); Deering v. State, 273 Ark. 347 , 619 S.W.2d 644 (1981) (State produced evidence of victim’s routine, fact that victim last seen talking to someone fitting defendant’s description and that defendant attempted to sell car similar to victim’s); People v. Bolinski, 260 Cal.App.2d 705 , 67 Cal.Rptr. 347 (1968) (victim disappeared, defendant arrested with victim’s car and credit cards); People v. Scott, 176 Cal.App.2d 458 , 1 Cal.Rptr. 600 (1960) (statements by defendant that he knew his wife was dead and proof that he had recently cleaned up car); People v. Cullen, 37 Cal.2d 614 , 234 P.2d 1 (1951) (victim disappeared, proof that defendant forged victim’s check, proof of bloodstains on rug and clothing and proof of defendant’s incriminating statements); People v. McMonigle, 29 Cal.2d 730 , 177 P.2d 745 (1947) (testimony of FBI agent recounting defendant’s reconstruction of events and other admissions, evidence of victim’s shoes and other personal possessions); State v. Pyle, 216 Kan. 423 , 532 P.2d 1309 (1975) (house burned to ground, no trace of alleged victim); Warmke v. Commonwealth, 297 Ky. 649 , 180 S.W.2d 872 (1944) (baby dropped in creek, only cap found); State v. Zarinsky, 143 N.J.Super. 35 , 362 A.2d 611 (1976) (last saw victim drive away with man fitting defendant’s description and admissions to cellmates); State v. Dudley, 19 Ohio App.2d 14 , 249 N.E.2d 536 (1969) (victim’s cap found on floor and defendant’s car stained with blood as well as a crowbar found stained with blood); State v. Williams, 80 P. 655 (Or. 1905) (victim disappeared but tufts of victim’s hair and metallic articles worn ⁵⁵² by victim found); Commonwealth v. Burns, 409 Pa. 619 , 187 A.2d 552 (1963) (proof of victim’s consistent pattern of living and an abrupt termination, victim last seen on floor with blood on forehead and last seen in presence of defendant, defendant confessed to burying victim); Commonwealth v. Lettrich, 346 Pa. 497 , 31 A.2d 155, 156 (1943) (defendant confessed to murder, no body was ever found, the court noted that fabrication of contradictory statements to divert inquiry was a circumstance indicating guilt); Commonwealth v. Jones, 297 Pa. 326 , 146 A. 905 (1929) (victim last seen with defendant, burned human bones and victim’s clothing found in burned house, victim’s clothing also found in defendant’s residence); Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982) (evidence of bloodstains and broken ankle bracelet); State v. Lung, 70 Wash.2d 365 , 423 P.2d 72 (1967) (evidence of coat with bullet hole and bloodstains). Appellant also attacks as incredible and unreliable evidence of Catherine’s habits and her failure to contact family members and friends. We note, however, that such proof is essential where, as here, no body is produced. See People v. Cullen, 37 Cal.2d 614 , 234 P.2d 1 (1951); State v. Zarinsky, 143 N.J.Super. 35 , 362 A.2d 611 (1976); Commonwealth v. Burns, 409 Pa. 619 , 187 A.2d 552 (1963).

See also Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982) wherein the Court stated: Worldwide communication and travel today are so facile that a jury may properly take into account the unlikelihood that an absent person, in view of his health, habits, disposition and personal relationships would voluntarily flee, ‘go underground,’ and remain out of touch with family and friends. The unlikelihood of such a voluntary disappearance is circumstantial evidence entitled to weight equal to that of bloodstains and concealment of .evidence. Id. 294 S.E.2d at 890 . Especially damaging is the testimony of appellant’s five and one-half year old daughter, who ⁵⁵³ testified to hearing a scream and seeing her mother on the floor.

Appellant’s counsel at trial and on appeal intimate that this testimony is inherently unreliable because the child’s testimony was coached through the use of dolls, reenactments and a “tape of unknown content.” We note, however, that these arguments affect only the weight to be given the child’s testimony — a matter within the province of the jury. The test for sufficiency is whether any rational trier of fact, given the evidence, could have found guilt beyond reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979); Tichnell v. State, 287 Md. 695, 717 , 415 A.2d 830 (1980). In the instant case the State produced evidence of: (1) the last time Catherine was seen alive by her daughter; she heard a scream and saw her mother on the floor of appellant’s office; (2) the appellant’s own inconsistent statements concerning his wife’s disappearance, i.e., his inability to account for his activities for several hours the night she disappeared; his persistent denial of washing his truck despite the testimony of two eyewitnesses to the contrary; his involvement in repossessing her car; and his comments to a secretary that certain rugs were seized as a result of the investigation when none were, in fact, taken by police; (3) Catherine Hurley’s relationship with appellant; (4) her character and patterns of behavior; and (5) the lack of activity on Catherine’s bank accounts and credit cards and lack of contact with family members, friends and governmental agencies.

Given this evidence, as presented, a rational trier of fact could have inferred Catherine’s death and the appellant’s criminal involvement. The appellant relies on evidence the defense presented at trial which suggested that Catherine Hurley was capable of disappearing without notifying anyone or attempting to contact anyone and which suggested ⁵⁵⁴ that she was suicidal and possessed multiple personalities. It is true that this evidence,