Morton v. State

Cole J., concurring in part and dissenting in part While I concur in the majority opinion insofar as it holds that the judgment below must be reversed because the accused was illegally arrested and searched, I do not agree that a new trial is warranted. I believe that the holding of the Supreme Court in Burks v. United States, 437 U. S. 1 , 98 S. Ct. 2141 , 57 L.Ed.2d 1 (1978), is controlling and militates against the granting of a new trial in this case. Contrary to the majority, I would consider Morton’s contention that his incriminating statement was improperly admitted into evidence. I believe that Morton’s statement was inadmissible as the “fruit of the poisonous tree” under Brown v. Illinois, 422 U. S. 590 , 95 S. Ct. 2254 , 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U. S. 471 , 83 S. Ct. 407 , 9 L.Ed.2d 441 (1963); and the decision of this Court affirming Judge Orth’s opinion for the Court of Special Appeals in State v. Ryon, 278 Md. 302 , 363 A. 2d 243 (1976), aff'g Ryon v. State, 29 Md. App. 62 , 349 A. 2d 393 (1975).

There is simply no evidence in the record of this case that anything operated to attenuate the connection between Morton’s arrest and statement so as to dissipate the taint of the primary illegality. The majority refuses to consider this issue, and understandably so, for when the items seized and the incriminating statement are excised from the record due to their inadmissibility, the remaining evidence is insufficient to ⁵³⁶ sustain Morton’s conviction, and under Burks a retrial would violate the Double Jeopardy Clause. The Burks Court held that “the Double Jeopardy Clause precludes a second trial once a reviewing court has found the evidence legally insufficient, [and] the only ‘just’ remedy available for [the] court is the direction of a judgment of acquittal.” Burks, supra, 437 U. S. at 18 . Remanding these proceedings for a new trial subjects the accused to double jeopardy.

I must, therefore, respectfully dissent.