Bartram v. State, 582

CourtCourt of Special Appeals of Maryland
Citation33 Md.App. 115,364 A.2d 1119
Docket NumberNo. 582,582
PartiesMarilyn Susan BARTRAM v. STATE of Maryland.
Decision Date05 October 1976

James P. Gillece, Jr., Baltimore, with whom were Robert B. Barnhouse and Piper & Marbury, Baltimore, on the brief, for appellant.

Albert Gallatin Warfield, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Sandra Ann O'Connor, State's Atty. for Baltimore County and Wallace Kleid, Asst. State's Atty. for Baltimore County, on the brief, for appellee.

Argued before MOYLAN, DAVIDSON and MASON, JJ.

MOYLAN, Judge.

This appeal is the culmination of a case rent by internal tension. The appellant, Marilyn Susan Bartram, convicted by a Baltimore County jury of the second-degree murder of her husband and of a related handgun offense, was a woman rent by internal tension at least during the five years of her married life. The husband and victim, Douglas MacArthur Bartram, was a man rent by internal tension apparently throughout the whole of his twenty-eight-year life. Ironically, the masterfully thorough defense waged on behalf of the appellant is also rent by internal tension. It consisted of an imaginative and meticulously prepared defense upon the merits; it also consists, at the present level, of four claims of constitutional error. The strategically compelled defense of suicide, on the one hand, tugged compellingly in one direction. It was marked by candor, openness and full disclosure. The thrust of three of the four constitutional contentions, on the other hand, is in a diametrically opposite direction. Each line of defense has been well handled as a virtuoso performance; they simply fail to come together into a well-orchestrated whole.

Constitutionally, the appellant objects bitterly to the admission of a brief statement made by her to a policeman, in which she revealed the existence of her husband's mistress, Katherine Pope. Upon the merits, however, the appellant took the stand and over several hundred pages of testimony poured forth every sordid detail of her husband's troubled sex life, central to which was the bizarre triangular relationship between the appellant, her husband and Katherine Pope. That testimony was the indispensable predicate for the psychiatric autopsy, without which the entire defense effort had not a prayer of success.

Constitutionally, the appellant objects to the use of Katherine Pope as a witness as 'the fruit of the poisonous tree.' Upon the merits, however, the appellant volunteered the life story of Katherine Pope with a week-by-week account of her intimate and regular contact over a three-year period with both the appellant and her late husband. Again, such information was essential to the only available defense upon the merits.

One wants to say to the defense, 'Shorn of technicality, what do you really want? Which way would you have it? Do you really want all of the background information in this case brought out or do you not? Either position is legitimate, but choose. It ill behooves you to try to have it both ways.'

Constitutionally, the appellant objects to the failure of the trial judge to instruct properly on the burden of proof with respect to an intentional but hot-blooded killing in response to legally adequate provocation. Upon the merits, however, the appellant swears that her husband's death was suicidal and that she was not the homicidal agent, either in cold blood or in hot blood.

To be sure, contradictory defenses are not impermissible in our jurisprudence. The net effect nonetheless is to reduce the constitutional arguments to the clever legalism of the debating chamber and to mute the anguished cry of outraged innocence. Even in that less emotionally charged context, however, the four constitutional issues are challenging ones. The fourth, moreover, is not at odds with the defense upon the merits. The four contentions now before us are:

1. That a statement given by the appellant to a policeman at the Baltimore County General Hospital was erroneously admitted in evidence in contravention of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966);

2. That the police only learned of the existence of Katherine Pope through a statement taken from appellant unconstitutionally and that her use by the State as a witness, therefore, violated 'the fruit of the poisonous tree' doctrine in contravention of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963);

3. That an erroneous instruction was given on the burden of proof with respect to manslaughter in contravention of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); and

4. That the grand jury process was abused when, following the nolle pros of a first indictment because of an arguable violation of Coblentz v. State, 164 Md. 558, 166 A. 45, the assistant state's attorney and one police witness summarized the State's case before a second grand jury.

The Factual Backdrop

Before proceeding to a consideration of those issues, let us set the stage factually. On Monday morning, July 2, 1973, at approximately 8:30 a. m., Douglas Bartram died in his bed, at his apartment 2-A at 3608 Yennar Lane in Randallstown, with two gunshot wounds to the head and a third to the chest. Present when the police arrived, standing immediately outside the apartment, was the appellant wife. She was in her nightgown, was attended by a friend from the neighborhood and was in a distraught condition. She and her husband had lived alone at 3608 Yennar Lane since moving from Connecticut nine months earlier so that he could take a job as chief engineer for WFBR radio. From immediate surface appearances, the police had arrived at the scene of a suicide.

To place the later contentions in proper perspective, we will set out initially just the hard evidence of the corpus delicti-the corpus delicti of unlawful homicide or of suicide, as the case may be. We will factor out of our preliminary analysis any evidence dealing with motivation-homicidal motivation as the evidence was interpreted by the State; suicidal motivation as that same evidence was interpreted by the defense. Where did the case stand without any motivational embellishment, inculpatory or exculpatory?

With two bullets in his brain, Douglas Bartrum did not die of natural causes. The hard fact of three separate shots coupled with the careful firing of one of those shots in point-blank contact with the right temple negated any credible possibility of accident. Douglas Bartram was the victim of either an intentional suicide or an intentional homicide. With no scintilla of speculation that any third person was present in the apartment at the time of death, the killing agent, ineluctably, was either the victim himself or his wife, the appellant. Against that spare backdrop of but two possibilities, we turn to the testimony of Dr. Russell Fisher, who performed the autopsy.

The chest wound was superficial and will be more fully discussed hereinafter. The two shots to the head were crucial and with respect to these, Dr. Fisher was able to establish an absolute sequence of firing. The first shot entered the skull at the right temple. The entrance wound itself established that the gun barrel was in direct contact with the skin at the time of firing. The bullet shattered the skull and moved, from right to left, across the very front of the brain, doing minor damage to two of the frontal lobes. It passed essentially in front of the brain, shattered the skull again on its way out, but did not have enough force left to get through the last layer of surface skin. This bullet caused considerable bleeding as it passed through. It destroyed the entire sinus area behind the nose and mouth and caused a considerable spilling of blood. It would have caused, furthermore, a significant spurting of blood from both of those cavities. This bullet also completely severed the optic nerve and would have caused immediate blindness. It, however, was not, and alone need not have been, fatal. We will refer to it as the temple shot.

The cheek shot followed the temple shot and produced instantaneous death. It was fired from a distance of between three and six inches from the right cheek. It went inward and upward through the mouth and tore squarely upward and rearward through the mass of the brain. There was no bleeding along its path. It could have been followed, testified Dr. Fisher, by no more than four or five heartbeats, after which all blood pressure would have ceased and all bleeding would have stopped. From the bleeding pattern alone, it had to follow the temple shot. Dr. Fisher testified as to the effect of this second shot:

'Immediate disability of the patient. In fact, immediate death. This was so terminal in timing that there was hardly any blood along the track of the bullet in the brain. He was without blood pressure within seconds after this passage of this bullet.'

The defense made two efforts to fit the sequence of head shots within the realm of suicidal possibility. The first was the theory that since the temple shot did not produce immediate death, the victim-bent on suicide-though now blind, might have fired off a second time into his own cheek. Dr. Fisher discounted this even as a remote possibility. The medically certain effect of the temple shot with the gun pressed against the skin would have been the explosive expansion of gases around the skull beneath the surface of the skin. The shattering concussion would have produced immediate unconsciousness. Dr. Fisher testified:

'There are two components to a contact gunshot wound of the skull. One is not only the explosive expansion of gases but accompanying that would be a concussive effect. It would be my judgment that, certainly, this man would be rendered temporarily unconscious by the passage of a bullet through his cranial cavity, with all the smashing effects of the gases...

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