Morris v. State

⁶⁶² LISS, Judge. Appellant, Wayne Phillip Morris, was charged by indictment in the Circuit Court for Cecil County with murder, arson and related charges. At a pretrial hearing the presiding judge declined to quash a summons issued by the State for an expert witnéss previously consulted by the defense. At the trial, before a jury, the expert was permitted to testify as a State’s witness and was also permitted to conduct an in-court demonstration before the jury.

During the trial, a tape recorded statement made by the appellant was played to the jury and a transcript of the statement was given to each juror. Appellant’s motions for judgment of acquittal were denied, but several related counts were dropped by the State. Upon retiring to deliberate, the jury requested the actual tape of appellant’s statement. The trial court denied the request.

Later, the jury returned verdicts of guilty of first degree murder and arson. Subsequently, appellant filed a motion for a new trial, and issued summonses for several of the jurors who sat in the case. Appellant proffered to the court that several members of the jury panel had been guilty of misconduct outside the jury room involving the use of the transcripts of the statements. The court refused to hold an evidentiary hearing and granted the State’s motion to quash the summonses for the jury members.

Sentences were thereupon imposed and it is from these judgments that this appeal has been filed. Appellant raises the six following issues to be addressed by this appeal: 1. Did the trial court commit error in allowing the State to call as its witness an expert initially consulted by the defense, but whom the defense did not intend to call to testify at trial? 2. Did the trial court commit error in allowing the State to offer evidence that appellant had invoked his ⁶⁶³ right to remain silent sometime after Miranda warnings had been administered to him? 3.

Did the trial court commit error in allowing the State to conduct an in-court demonstration? 4. Did the trial court commit error during deliberations in refusing to comply with the jury’s request for the actual tape of appellant’s statement? 5. Did the trial court commit error when it refused to conduct an evidentiary hearing concerning juror misconduct? 6. Was the evidence legally sufficient to sustain the verdicts? —THE FACTS— At 2:43 A.M. on August 6, 1982, a male caller told a dispatcher for the Elkton Police Department that there was a dead girl at a local motel, and that her room was on fire.

The caller refused to give his name or location to the dispatcher, because he stated that it would incriminate him. Police went to the motel. Within minutes of their arrival, they noticed that there was a fire in one of the rooms. They extinguished the fire, which had burned through the carpeting and into the floor, charring a lk inch area.

Inside the room they found the partially clad body of the victim, Shirley Thompson. Thompson had been strangled. A black cord, torn from a bedside clock-radio, had been wrapped around her neck. The clock read 1:39.

On Thompson’s exposed back, the words “Die now” had been written with a reddish and black substance. A red nail polish cap and black mascara brush were found entangled in her hair. Their capless bottles were found nearby, and chemical analysis revealed that the substance on her back had similar characteristics to the substance in the bottles. At approximately 3:00 A.M., the same male made another call to the Elkton police.

This time he said that the girl’s ⁶⁶⁴ name was “Shirley Thomas”; that she was from Dover; that he had left George’s Bar with her; and that her boyfriend had murdered her. Around 3:30 A.M., the appellant telephoned the State Police. He was very emotional. He told the desk sergeant that he already had spoken to the Elkton police.

He gave his location, and eventually was brought to the barracks. Appellant agreed to give a taped statement. He said that he had gone to George’s Bar at 9:00-9:30 the previous evening. He saw “Shirley Thomas” with some other guy.

Eventually, appellant and the victim went to her motel room. Forty-five minutes later, there was a knock on the door. Shirley got out of bed and cracked the door. Two men — one of whom had been with her earlier — forced their way into the room.

While one of the men held the appellant, the other assaulted Thompson and accused her of infidelity. Eventually, he strangled her with the cord from the clock-radio. Her assailant also stuck a jewelry pin into her chest and began dumping things into a drawer, which he said were going to burn. The other man took appellant outside.

Appellant stated that he was then able to escape, and eventually called the Elkton police. Several hours after giving the statement, appellant was arrested and charged with the crime. He was one of three suspects arrested by the Elkton police. The other two were never charged.

One of them was Robert Foster. He was arrested at the scene of the crime within an hour after the police arrived. Foster admitted being intimate with Thompson, and said that she had broken off their relationship several days before the murder. Although denied by him, there was evidence that subsequent to the murder Foster admitted that he was jealous.

Glass particles from his shoes had similar properties as glass from a broken vodka bottle found in Thompson’s motel room. It was stipulated, however, that a barmaid would have testified that Foster was in ⁶⁶⁵ her establishment for “last call” around 1:45 A.M. the morning of the murder. The Elkton police also had arrested Joseph Bursler shortly after the murder. Bursler was a suspect because they found him passed out in a phone booth; he was a male; and it was known that a male had used a telephone to call the dispatcher.

Before his own arrest, appellant had identified Bursler as Thompson’s assailant. For his part, Bursler admitted that on the night preceding the murder he had picked up the victim in a bar; had had intercourse with her in her motel room; and had spent much of the next day bar hopping with her. Thompson’s blood-alcohol content was .17 at the time of death. However, Bursler claimed that he became “pretty soused” and fell asleep at a table in George’s Bar on the evening of the murder.

He slept until the bar closed, when he headed to the phone booth. A barmaid at George’s Bar agreed that Bursler had fallen asleep at the table. He was not awakened until 3:00 A.M. the morning of the murder. She also testified that around 11:30 P.M.-12:00 A.M. that evening, she saw appellant and Thompson leave the bar together.

A defense witness stated that he saw Thompson leave the bar with Bursler and another man around 9:30 or 10:00 P.M. the evening of the murder. However, he admitted that he could not remember anything that happened after 10:30 P.M. up until he woke up in his truck on the bar parking lot later the next morning. At the time of his arrest, the police did not find any unusual marks on appellant. He denied making the phone calls about the fire and the body.

Some of his clothing was seized for analysis. Just above the pocket appellant’s shirt had a streak of black substance similar to mascara. An FBI analysis of the substance proved inconclusive. During the trial, after a defense motion to quash the summons had been denied, the State called a defense expert who testified that there was a ⁶⁶⁶ similarity between the substance on the shirt and the substance on the mascara brush found in the victim’s hair.

Appellant’s pants also were seized. A fabric print lifted from the top of the clock-radio by the victim’s bed did not match the weave of appellant’s pants. Appellant’s shoes were seized as well. A particle of glass recovered from one of them had similar characteristics as the glass from the broken vodka bottle.

Appellant did not testify at trial.. During the trial, the judge overruled a defense objection to an in-court demonstration of the application of fingernail polish and mascara to the back of a State trooper by another police officer. Also during the trial, evidence was produced by the State that Bursler and Foster had been very cooperative with the police. On the other hand, evidence was offered that appellant had invoked his right to remain silent even though there were a lot of questions the investigator wanted to ask him.

Defense counsel’s request during the testimony that the court give “some instruction of the jury of no negative connotation from that, of the invoking Miranda rights” was denied by the trial judge. During cross-examination of a State witness, the defense abandoned a line of questioning regarding the taped statement of appellant after the prosecutor promised to introduce it with his next witness. While the prosecutor had the tape played during the testimony of his next witness, only a transcript of the tape — not the tape itself — was marked as an exhibit. When the jury began deliberating, it asked for the actual tape.

The court rejected the defense argument that the State had promised to introduce the tape and thereby misled the defense, and refused to allow the jury to have it during deliberations. The jury returned guilty verdicts to first degree murder and malicious burning, after the court had denied motions for judgment of acquittal. ⁶⁶⁷ Subsequently, when the defense issued summonses for several of the jurors in connection with a motion for a new trial, the State moved to quash them. At the hearing on the motion to quash, the defense proffered that four of the jurors had taken transcripts of the statement of appellant home with them during the trial, and that one of them had checked out the times in the statement. At the end of the hearing the court denied the motion to quash, but several days later, reconsidered, and granted it.

During a later hearing, the defense proffered that two of the jurors had taken the transcripts of the statement home during the trial; that both made time logs from the statement and other evidence; that one of them was familiar with the distances involved; both of them determined that his time “did not jive,” and as a result one of them had made up her mind that he was guilty; and, it was proffered, that they presented their time log and results to their fellow jurors during deliberations. Judgment was entered on the verdicts and the court below imposed terms of imprisonment of life for the murder with ten years consecutive on the arson charge. Appellant then noted this appeal. 1. As a portion of its case-in-chief, the State called as its witness an expert witness who had initially been consulted by the defense.

The expert had been consulted to analyze a stain on the shirt worn by the appellant at the time of his arrest. The FBI had examined the shirt but its determination had been inconclusive. Because the defense refused to stipulate to the chain of custody of the shirt, the trial court had issued an order requiring the State to deliver the shirt to the laboratory of the expert for analysis and to be present during the analysis. It was the court’s opinion that this was required in order to protect the evidence and to verify the chain of custody of the physical evidence from the police to the expert. ⁶⁶⁸ Prior to trial the State issued a summons for the expert originally consulted by the defense.

Defense counsel promptly filed a motion to quash the subpoena on the grounds that it did not intend to offer the expert as a witness for the defense at trial, and that to permit the State to call the witness would result in a violation of the attorney-client privilege or in the alternative a violation of the work-product doctrine and the underlying purposes of criminal discovery pursuant to Maryland Rule 741 d 2. In a pretrial hearing, the court rejected the motion to quash. Appellant contends that this amounted to reversible error. The Court of Appeals had before it in State v. Pratt, 284 Md. 516 , 398 A.2d 421 (1979) a somewhat similar case.

There the issue was whether communications made by a defendant to a psychiatrist employed by defendant’s attorney to aid in an insanity defense to a charge of murder were within the scope of the attorney-client privilege. The Court held that communications made by a defendant in a criminal case to an expert in order to equip that expert with the necessary information to provide the defendant’s attorney with the tools to aid him in giving his client proper legal advice are within the scope of the attorney-client privilege. There is a distinction to be made, however, between the disclosure of confidential communications whether made to an attorney or to an agent consulted by the attorney and information gained by objective scientific analysis conducted by experts, no matter by whom employed. In Levitsky v. Prince George’s County, 50 Md.App. 484 , 439 A.2d 600 (1980), this Court had before it a case in which the issue was whether the calling of an opponent’s appraiser in a condemnation case was a violation of the attorney-client privilege.

We held that the determinative factor to establish the cloak of privilege in the case was not whether the case was criminal or civil but rather whether the expert’s opinion was based on confidential communications emanating from the client. In Levitsky v. Prince George’s County, supra, at 494, 439 A.2d 600 , we quoted with ⁶⁶⁹ approval from State Highway Commission v. Earl, 82 S.D. 139 , 143 N.W.2d 88 (1966), a South Dakota Supreme Court case, as follows: The purpose behind our attorney-client privilege is to encourage a client to freely communicate with his attorney without fear of disclosure. Obviously its protective mantle does not extend to an appraiser of real property. He is not an attorney and the appraisal process of inspecting property, examining public records, comparing sales, and applying knowledge, training and experience in forming an opinion of value does not involve a confidential “communication made by the client.” The mere fact the expert may have communicated his opinion of value to either the attorney or client does not make it a privileged communication. 143 N.W.2d at 92 .

Similarly, the experiments conducted by the expert with the shirt worn by the defendant and the opinions he reached as a result of these scientific explorations were not predicated upon any information furnished by the defendant to either his attorney or to the expert and were not therefore protected by the attorney-client privilege. See also United States v. Nobles, 422 U.S. 225, 233-234 , 95 S.Ct. 2160, 2167-2168 , 45 L.Ed.2d 141 (1975), where it was held that the compelled production of the report of a defense investigator which did not contain any information conveyed by the defendant did not violate defendant’s Fifth Amendment privilege against self-incrimination. We find no merit in defendant’s reliance on the work-product doctrine. That doctrine is intended to protect and to act as a limitation upon pretrial discovery of a lawyer’s strategies, legal theories and mental impressions.

It was never intended to be an evidentiary privilege. This is evidenced by Maryland Rule 741 d 2, which grants the State pretrial discovery of written reports of defense experts who will be called as witnesses at the trial. Finally, it is obvious to us that under the special circumstances in this case, the court made no error in denying the ⁶⁷⁰ defendant’s motion to quash the summons for the expert witness. The State’s own expert (the FBI) did not conduct the test conducted by appellant’s expert because to do so would have required the destruction of the physical evidence.

Once appellant’s expert in his testing of the shirt destroyed the evidence it obviously made it impossible for the State to conduct the same test. It seems clear to us' that under these circumstances “the interest of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence,” United States v. Nobles, supra, 422 U.S. at 238 , 95 S.Ct. at 2170 , would not be served by extending the work-product doctrine to exclude the expert’s evidence. 2. Appellant next claims that the State improperly introduced evidence that he invoked his right to remain silent after being given Miranda warnings and improperly contrasted this conduct with the willingness of the other two suspects to cooperate with the police. We find no merit in this contention for a number of reasons.

Initially, we find that this issue has not been preserved for appellate review. At trial, Officer Perrot, one of the investigating officers, described an interview conducted on the morning after the burning and murder, at which appellant, another officer and an Assistant State’s Attorney were present. Appellant was advised that he was being interviewed as a “victim-witness.” Perrot testified that at “one point when the Assistant State’s Attorney asked the appellant certain questions, Mr. Morris became extremely belligerent and would not say anything else.” No objection to this testimony was made by the appellant. The officer was then asked whether this was the first time appellant had been reluctant to talk and the officer replied in the negative.

He said that during the morning while the defendant was in the Elkton Police Department he was at first willing to answer specific questions but as time wore on he began giving evasive answers and was extremely uncooperative. Appellant objected at that point but only to request that the witness be more ⁶⁷¹ specific. The court instructed the police officer to be more specific and the witness continued to testify, without objection, as to appellant’s willingness and unwillingness to answer specific questions. At no point did appellant object to the admissibility of this testimony or move to strike any of the testimony given.

Under these circumstances, we conclude that the issue has not been preserved for appellate review. See Brooks v. State, 35 Md.App. 461 , 371 A.2d 674 (1977). 3. As a general rule the trial judge is vested with the discretion to permit or deny in-court demonstrations. Brooks v. State, 24 Md.App. 334 , 330 A.2d 670 (1975).

That discretion includes the right to simulate in the courtroom to the jury or other trier of fact the conditions existing at the time and place of the crime. Cf. Midgett v. State, 223 Md. 282 , 164 A.2d 526 , cert. denied, 365 U.S. 853 , 81 S.Ct. 819 , 5 L.Ed.2d 817 (1960). When the State indicated that it wished to demonstrate to the jury how long it would take to write “Die now” on the victim’s back with the substances used, appellant stated that he “might” object on the basis that this would be an opinion.

The court noted that the jury could figure out what steps the killer had used, so that the demonstration would not be an opinion. Appellant made no objection and the State proceeded with its demonstration. The issue, obviously, has not been preserved for appellate review. Maryland Rule 1085.

Furthermore, the appellant’s arguments as recited in his brief go to the weight of the evidence and not to its