Bowers v. State

Citation468 A.2d 101,298 Md. 115
Decision Date09 December 1983
Docket NumberNo. 131,131
PartiesMarselle Jerome BOWERS v. STATE of Maryland. Sept. Term 1982.
CourtCourt of Appeals of Maryland

Arthur A. DeLano, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender and George E. Burns, Jr., Asst. Public Defender, Baltimore, on brief), for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., and Deborah K. Handel, Asst. Atty. Gen., Baltimore, on brief), for appellee.

Argued Before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

SMITH, Judge.

Appellant, Marselle J. Bowers, was convicted of murder in the first degree by a Charles County jury. The jury subsequently determined that he should be sentenced to death. We shall affirm the conviction. However, we shall vacate the death sentence because the jury failed to find a mitigating factor which the State at trial conceded the evidence showed. The case reaches us pursuant to the provisions of Maryland Code (1957, 1982 Repl.Vol.) Art. 27, § 414 stating that whenever the death penalty is imposed we shall review the sentence.

I

The basic facts are not in dispute. Pursuant to Maryland Rule 828 g the parties have entered into an agreed statement of facts. We shall repeat only so much as is necessary for a clear understanding of the case. Additional facts will be developed as we discuss the various contentions of the parties.

Ethel Clark lives near Maryland Rt. 90 outside Ocean City in Worcester County. At approximately 8:15 p.m. on July 8, 1981, a woman's screams and certain loud noises drew her attention to two cars parked alongside that highway. She saw no one other than a tall black man standing near the cars but she heard two voices. The larger of the two cars left the scene after about fifteen minutes. The small car was still there the next morning.

John O'Connell was the boyfriend of Monica McNamara. He was on a temporary work assignment at a hospital in Salisbury and was staying at a condominium in Ocean City. He expected Miss McNamara to join him on the evening of July 8. When she did not arrive he called her home in the Washington, D.C., suburbs but received no answer.

While enroute to work on the morning of July 9 O'Connell saw Miss McNamara's Ford Pinto parked along Rt. 90. He stopped and searched the immediate area. He found her keys and one of her sandals on the ground behind the car and her overnight bag and beach bag on the back seat of the car. He then went to Ethel Clark's house and asked her to call the police.

Later on the morning of July 9 Maryland State Police found Miss McNamara's body near a railroad overpass close to southbound U.S. Rt. 13 in Somerset County. That point is just outside Pocomoke City which is in Worcester County. The body had been dragged a short distance off the road. The cause of death was later determined to be strangulation.

The State Police learned on July 31 that a man identifying himself as Robert McNamara had been arrested in Petersburg, Virginia, on a charge of defrauding an innkeeper. This man had attempted to use Monica McNamara's credit cards to pay for his room. Two employees at the Ramada Inn in Petersburg identified Bowers as the individual who posed as Robert McNamara and used Monica McNamara's credit cards. By stipulation the parties agreed that a handwriting expert would testify that in his opinion the signature "Robert McNamara" appearing on various documents at the Ramada Inn was in the handwriting of Bowers.

On August 1 Trooper D. Bruce Hornung of the Maryland State Police interviewed Bowers at the Petersburg jail. Hornung advised Bowers of his Miranda rights at approximately 9:15 a.m. Bowers signed a written waiver using the name of Robert McNamara. When advised by Trooper Hornung that he knew Robert McNamara was not his real name, appellant said that his name was Marselle Jerome Bowers.

The questioning by Trooper Hornung was directed to how Bowers came into possession of the credit cards. Several different stories were told by Bowers. At approximately 11:45 a.m. Bowers asked to use the telephone. He placed calls to several numbers before he made a connection where he carried on a conversation. When Bowers returned to the interview room he said, "I need a lawyer, but I am not going to take the rap for this thing because I didn't kill her. But I am involved in it, and I have just talked to a Christian woman and she told me to tell the truth." Bowers then proceeded to give Trooper Hornung a lengthy statement in narrative form in which he said that both he and an accomplice named Alexander Peterson had had sexual intercourse with the victim and that his accomplice had strangled the victim to death.

Bowers indicated that Peterson was a fugitive from the Chicago area. At trial the State introduced records from the Pontiac Correctional Center in Illinois showing that an Alexander Peterson was incarcerated at that institution at the time of the offense in question.

On August 2 Trooper Hornung searched the 1977 Ford LTD that Bowers had been using at the time he checked into the Ramada Inn. Several items were removed and submitted to the Maryland State Police laboratory in Pikesville. Evidence was adduced at trial showing that a piece of vinyl taken from that vehicle was stained with type A blood, the same type as that of the victim.

Bowers presented no evidence at trial.

II

Bowers claims that the trial court erred in denying his motion to suppress his extrajudicial statement.

A Right to counsel

He first contends that he invoked his right to counsel when he returned to the interview room at approximately 12:15 p.m. and made the statement we have quoted to the effect that he needed a lawyer. Bowers argues:

"Trooper Hornung clearly understood the significance of Appellant's statement. He was careful to record it 'verbatim.' Instead of terminating or readvising Appellant of his Miranda rights, Trooper Hornung said nothing. His choice was deliberate. He permitted Appellant to proceed with a rambling narrative of events hoping that Appellant would incriminate himself. Trooper Hornung's silence at this point was simply a more subtle, but nonetheless effective interrogation technique. When Appellant gave 'false information', Trooper Hornung did not hesitate to interrupt. He broke Appellant down for more than three hours and then, when Appellant asserted his right to counsel, he carefully refrained from further direct questioning. Since this interrogation technique was designed to elicit incriminating information, it should be condemned."

He relies on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and Whitfield v. State, 287 Md. 124, 142-43, 411 A.2d 415, cert. dismissed, 446 U.S. 993, 100 S.Ct. 2980, 64 L.Ed.2d 850 (1980). They do not support his position. We first note that the trial judge said, "Upon consideration of the testimony and evidence presented, the Court is convinced that the defendant was given and understood the Miranda warnings, and that he voluntarily made the statements at issue."

In Edwards the Court reaffirmed its holding in Miranda and said that "it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." 451 U.S. at 485, 101 S.Ct. at 1885. In the next succeeding paragraph Justice White said for the Court:

"Had Edwards initiated the meeting on January 20, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial. The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver. Rhode Island v. Innis, supra, makes this sufficiently clear. 446 U.S., at 298, n. 2 ." 451 U.S. at 485-86, 101 S.Ct. at 1885 (footnote omitted).

In order to determine that there is a violation we must find that interrogation took place. In Whitfield, 287 Md. 124, 411 A.2d 415, Judge Digges said for the Court:

"Once such custody is established, a court must still determine whether an 'interrogation' took place before a violation of Miranda exists. 'Interrogation,' like 'custody,' is not easily defined, although in its usual sense, it 'refers to police questioning designed to elicit a response from a suspect.' Lederer, [Miranda v. Arizona--The Law Today,] 78 Mil.L.Rev. [107,] 134 [ (1977) ]. Of course, not all questioning by law enforcement officials of one in custody is tantamount to an interrogation in the Miranda sense. See Vines v. State, 285 Md. 369, 375-76, 402 A.2d 900, 903-04 (1979). For example, in a recent opinion by Judge Orth, this Court noted: 'There seems to be general agreement ... that Miranda does not apply to "administrative questioning," the routine questions asked of all arrestees who are "booked" or otherwise processed.' Id. at 376, 402 A.2d at 904. However, except for this type of questioning, if custody is found to exist, then any examination likely to lead to incriminating statements will be a 'Miranda interrogation.' " 287 Md. at 142-43, 411 A.2d 415.

In Whitfield we said, "that the mere fact that Officers Britton and Young did not intend to elicit incriminating information from Whitfield for prosecutorial purposes does not mean that they did not interrogate him in the Miranda sense." 287 Md. at 143, 411 A.2d 415. Their concern there was to secure the prison area by locating a gun known to be within the area.

In Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297, Justice Stewart said for the Court:

"[...

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