Oken v. State, 25

Citation327 Md. 628,612 A.2d 258
Decision Date01 September 1991
Docket NumberNo. 25,25
Parties, 17 A.L.R.5th 893 Steven Howard OKEN v. STATE of Maryland. ,
CourtCourt of Appeals of Maryland

Page 628

327 Md. 628
612 A.2d 258, 17 A.L.R.5th 893
Steven Howard OKEN
STATE of Maryland.
No. 25, Sept. Term, 1991.
Court of Appeals of Maryland.
Sept. 17, 1992.

[612 A.2d 260]

Page 633

Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender, Nancy S. Forster, Asst. Public Defender, all on brief), Baltimore, for appellant.

Gwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., M. Jennifer Landis, Asst. Atty. Gen., all on brief), Baltimore, for appellee.

Page 634



On January 18, 1991, a jury in the Circuit Court for Baltimore County convicted the appellant, Stephen Howard Oken, of the first degree murder of Dawn Garvin, of a first degree sexual offense upon Ms. Garvin, of burglary, and of the use of a handgun in the commission of a crime of violence. Having previously entered a plea of not criminally responsible and having been granted a bifurcated hearing on the issues of guilt or innocence and criminal responsibility, Oken elected to have the court decide [612 A.2d 261] whether or not he was criminally responsible. On January 22, 1991, the court found Oken to be criminally responsible. The sentencing for Oken's guilt of first degree murder was held before the same jury on January 24 and 25, 1991. The jury sentenced Oken to death. The trial judge subsequently imposed sentences of life imprisonment for the first degree sexual offense, a consecutive term of twenty years for the burglary, and a consecutive term of twenty years for the use of a handgun in the commission of a crime of violence. Oken has appealed those judgments. We begin by reciting the facts surrounding Dawn Garvin's murder.

At midnight on Sunday, November 1, 1987, Keith Douglas Garvin arrived at the United States Navy base in Oceana, Virginia. Mr. Garvin, who had a pass from his naval superiors, had just spent the weekend with his wife, Dawn Garvin, at their apartment in the Baltimore County community of White Marsh and was returning to his station in Oceana. Upon his arrival at the base, Mr. Garvin attempted to call his wife to notify her that he had arrived safely. Although the telephone rang at their White Marsh apartment, there was no answer. After making several additional unsuccessful attempts to call his wife, Mr. Garvin became worried and telephoned his father-in-law, Frederick Joseph Romano. Because Mr. Romano lived in close proximity to

Page 635

the Garvins' apartment, Mr. Garvin asked Mr. Romano to check on his wife. Mr. Romano agreed, and attempted to telephone his daughter twice. Both times there was no answer. Concerned about the fact that numerous calls to his daughter had gone unanswered, Mr. Romano decided to drive to his daughter's apartment.

When Mr. Romano arrived at his daughter's apartment, he found the front door to the apartment ajar, all the lights in the apartment turned on, and the television blaring. Sensing that something was wrong, Mr. Romano rushed into the apartment and found his daughter, Dawn, in the bedroom lying on the bed nude with a bottle protruding from her vagina. While attempting to give her cardiopulmonary resuscitation ("CPR"), Mr. Romano observed that there was blood streaming from her forehead. He immediately called for assistance, and paramedics arrived shortly thereafter. A paramedic then began to administer CPR, but his efforts were in vain. Dawn Marie Garvin was dead.

At 2:30 a.m., on November 2, Detective James Roeder of the Baltimore County Police Department arrived at the Garvins' apartment to inspect the scene of the murder. Detective Roeder testified that when he entered the Garvins' apartment he saw no signs of forced entry. Once inside, he observed a brassiere, a pair of pants, tennis shoes, a shirt, and a sweater on the floor near the sofa in the living room. The brassiere was not unhooked, but instead, was ripped on the side. The pants were turned inside out. Roeder also noticed a small piece of rubber on the floor near the television set. In the bedroom, Roeder found two spent .25 caliber shell casings on the bed, one of which was lying on top of a shirt. The shirt was blood stained and had what Roeder believed to be a bullet hole in it.

An autopsy of Ms. Garvin's body revealed that she had died as the result of two contact gunshot wounds; one of the bullets entered at her left eyebrow and the other at her right ear.

Page 636

The last person to see Dawn Garvin before she was fatally attacked was her brother, Frederick Anthony Romano. At 8:30 p.m. on November 1, Mr. Romano stopped by his sister's apartment to pick up a set of keys to Keith Garvin's car. Mr. Garvin had left the car at the White Marsh apartment so that it could be repaired during the week. Mr. Romano only stayed at his sister's apartment for about five minutes. When he left the apartment, Ms. Garvin was preparing to walk her dog. We will state additional facts as necessary in addressing the several contentions of the appellant.


Oken's first contention is that the trial court affirmatively misadvised him concerning his right to testify at the criminal [612 A.2d 262] responsibility hearing. As a result of such advice, Oken maintains that he did not knowingly, intelligently, and voluntarily waive his right to testify. The relevant advice given to Oken at the criminal responsibility hearing was as follows:

"[THE COURT]: Mr. Oken, although we didn't cover this when you put on your testimony yesterday with respect to criminal responsibility, you do have, as you had in the original trial, the right to testify or not testify as it relates to this stage of the proceedings as to whether or not you were criminally responsible by reason of insanity.

"If you choose not to testify, I can't think that, I can't take any inference that, in fact, you are criminally responsible because you refused to testify. However, I'll have to decide the case on the basis of the evidence that has been presented on this issue.

"If you choose to testify, you are subject to being cross examined by the Assistant State's Attorney on all aspects as they relate to the issue of criminal responsibility and as they relate to the direct examination which would be elicited by your counsel. So you would have, you would be subject to cross examination.

Page 637

"In addition, in the event that you were found to be criminally responsible and the State chose to do so, any testimony that you, that was admitted in these proceedings would be admissible in connection with the sentencing if, in fact, that sentencing were conducted before the jury and the State could present any such testimony at that time.

"So that you have the right to testify or not as to the issue in this stage. If you choose not to, I cannot infer that you are criminally responsible as a result of that choice. I would have to decide the case on the basis of the evidence that has been presented on this issue as well as the evidence that came in in connection with the guilt/innocence phase....

"So that you can choose not to testify or you can choose to testify. If you choose to testify, you're subject to cross examination, including any prior criminal record that you have that relates to credibility. And any testimony that you would offer in this proceeding, in the event that you were held or found criminally responsible, could be presented to the jury in the event that you elect to have sentencing done by a jury if the State chose to do so." (Emphasis supplied).

Oken argues that the advice given by the trial court was wrong as a matter of law because it suggested to him that his testimony at the criminal responsibility hearing would be admissible in toto at the sentencing hearing. He asserts that a criminal defendant's testimony at one stage of the proceedings against him is not automatically admissible against him at a subsequent stage of the proceedings without an evaluation of the testimony's relevance and its probative value when compared to its prejudicial effect.

In support of this contention, Oken relies primarily on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In Simmons, the Supreme Court held that a defendant who testifies in a Fourth Amendment pretrial suppression hearing may not have his testimony from that hearing admitted against him in a subsequent

Page 638

trial on the merits. Id. at 394, 88 S.Ct. at 976, 19 L.Ed.2d at 1259. Although Oken acknowledges that the Simmons's holding was based on the Fourth Amendment claim addressed therein, he maintains that reasoning in Simmons has been applied in other contexts as well 1 and, therefore, is equally applicable in the case sub judice.

[612 A.2d 263] On the other hand, the State argues that Oken's contention regarding his right to testify was waived because he never challenged or objected to the trial court's advice. Alternatively, the State asserts that even assuming, arguendo, that Oken's claim was properly preserved, it fails on the merits because the Supreme Court's decision in Simmons is not applicable to the instant case, and this Court's decision in Gilliam v. State, 320 Md. 637, 579 A.2d 744 (1990), cert. denied, --- U.S. ----, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991) is fatal to Oken's contention. Because we agree with the State's arguments concerning the merits of Oken's claim, we hold that the trial court did not commit reversible error in advising Oken regarding his right to testify at the criminal responsibility hearing. We explain our holding.

Initially, it is clear that Oken's reliance on Simmons is misplaced in light of the Supreme Court's more recent decision in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). In McGautha, the defendant relied upon the Supreme Court's reasoning in Simmons to support his claim that his unitary trial on the issues of guilt or innocence and...

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