Leuschner v. State

• Decision Date: 14 April 1980
• Docket Number: No. 945,945
• Citation: 45 Md.App. 323,413 A.2d 227
• Parties: Elwood Leroy LEUSCHNER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 323

45 Md.App. 323

413 A.2d 227

Elwood Leroy LEUSCHNER v. STATE of Maryland.

No. 945.

Court of Special Appeals of Maryland.

April 14, 1980.

Certiorari Denied July 3, 1980.

Patricia A. Logan, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

F. Ford Loker, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., and Richard D. Warren, State's Atty. for Wicomico County, on the brief, for appellee.

Argued before LOWE, COUCH and WEANT, JJ.

LOWE, Judge.

Elwood Leroy Leuschner was a multiple offender felon who came to Maryland as a fugitive from California justice. His atrocities there were of such nature that his wife by petition alleged him to have been a sexual psychopath causing his commitment to the Mendocino State Hospital which, after 90 days, decided he was not so deranged. Violating his parole after imprisonment, Leuschner emigrated to Maryland where he subsequently kidnapped, sodomized and murdered two young boys, 10-year-old Russell Marine by stabbing and 9-year-old Troy Krause by strangulation.

Despite the attendant violence of crimes of that nature, they are nonetheless clandestine. The witnesses are dead, most physical evidence hidden or destroyed and the only living knowledge of it is locked in the mind of the perpetrator. Though he may be suspected because of his past, he cannot be reapprehended for prior crimes; nor can he be deterred from committing future ones of like nature unless law enforcement officials can somehow discover his misdeeds. The obvious, usually the best, and often the only source, is the perpetrator himself and if a confession can be extracted properly, prosecution and subsequent confinement are reasonably assured. ¹ But if that route is followed officials must tread carefully lest they trespass upon an accused's constitutionally sacred grounds; that which provides him the privilege not to "be compelled in any criminal case to be a witness against himself . . . ." U.S.Const. amend. V.

To the extent that this privilege intrudes upon the investigatory aspect of criminal law enforcement, the privilege of silence serves as a checkrein, but not necessarily an unjustifiable restraint, upon police. Even the sanction for involuntarily extracting statements evidentiary exclusion is not an unreasonable one in light of the questionable truthfulness of that which was, or might be, coercively extracted by physical or psychological means. However, as the Fifth Amendment right has been interpretively extended, requiring procedural niceties of interrogation formulized to fit precise patterns, it has more and more become an impediment even to legitimate methods of law enforcement. See Harlan, J., dissenting in Escobedo v. Illinois, 378 U.S. 478, 493, 84 S.Ct. 1758, 1766, 12 L.Ed.2d 977 (1964).

One such nicety was the blending of the Fifth Amendment right not to speak, with the Sixth Amendment right "to have the Assistance of Counsel for (one's) defense". Initially, the right to counsel for one's defense presupposed an advocate at trial, but was interpretively extended to apply pretrial for an indicted defendant interrogated by the police in a completely extrajudicial environment. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Perhaps because the exclusionary rule was found to be an effective deterrent to opprobrious police conduct in violation of the Fifth Amendment, any statement elicited in the absence of counsel after indictment, regardless of how elicited, was not admissible at trial against the accused. Ibid. Soon to follow Massiah was Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), which extended the right to counsel to a suspect not necessarily indicted but from the moment the investigatory phase of an interrogation becomes accusatory and focused upon the suspect.

"(Where an) investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. (335 (1963)), at 342, 83 S.Ct. (792), at 795 (9 L.Ed.2d 799 at 804, 93 A.L.R.2d 733), and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." Escobedo v. Illinois, 378 U.S. at 490-491, 84 S.Ct. at 1765.

Escobedo thus interwove the two rights, binding them together with the sanction of exclusion. The final touch to this pattern of protection was Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which provided the striated brocade of procedural niceties.

Miranda's holding first appears as simplicity itself,

". . . the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Id. at 444, 86 S.Ct. at 1612,

but it was the "procedural safeguards" that striated the holding.

"Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently." 384 U.S. at 444, 86 S.Ct. at 1612.

The Fifth Amendment safeguard was abundantly clear, but that paragraph also suggested that to exercise the Sixth Amendment right to counsel might be a talisman serving to raise the Fifth Amendment shield as well.

"If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Id. at 444-445, 86 S.Ct. at 1612.

The Court then jumps back to the Fifth Amendment.

"Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him." Id. at 445, 86 S.Ct. at 1612.

Then, presumably, because of the application of the similar sanctions, the Court speaks as if the Fifth Amendment privilege and the Sixth Amendment right are one and the same,

"The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right (Fifth) to refrain from answering any further inquiries until he has consulted with an attorney (Sixth) and thereafter consents to be questioned (Fifth)." Id. at 445, 86 S.Ct. at 1612 (emphasis added),

and seems to say that a subsequent waiver must be a knowing and intelligent one.

For 45 pages after its initial deceivingly simple holding, the Court sought to explain what was meant, apparently trying to anticipate all situation possibilities of which it could conceive. Again it alternately addressed the right and the privilege in a single paragraph. With regard to the Fifth Amendment privilege not to speak, it said:

"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." 384 U.S. at 473-474, 86 S.Ct. at 1628 (footnote omitted).

In the same paragraph it anticipated the exercise of one's Sixth Amendment right to the assistance of counsel.

"If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning." Id. at 474, 86 S.Ct. at 1628.

Then it concluded those examples with the third possibility, an amalgam of the two.

"If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent." Id. at 474, 86 S.Ct. at 1628 (emphasis added).

But, contrary to some interpretations, even if both rights are exercised by one upon whom an investigation has focused, the Court did not by that fact alone command the investigators to cease all interrogation. It does, however place upon them a heavy burden if they wish to use in trial that which they elicit thereafter

"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." 384 U.S. at 475, 86 S.Ct. at 1628.

And the Miranda Court went on to make unequivocally clear that mere silence is not enough to overcome that heavy burden. Id. at 475, 86 S.Ct. at 1628.

Now, after more than a decade of experience, the Court in North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286, 292 (1979), explained that the heavy burden of proving a waiver need not be restricted to an express waiver by a defendant, but may be inferred by strong evidence of the circumstances...