Whittlesey v. State

Decision Date01 September 1994
Docket NumberNo. 16,16
Citation340 Md. 30,665 A.2d 223
Parties, 64 USLW 2287 Michael WHITTLESEY v. STATE of Maryland
CourtMaryland Court of Appeals

Nancy M. Cohen, Assistant Public Defender (Stephen E. Harris, Public Defender; George E. Burns, Jr. (argued) and Margaret L. Lanier, Assistant Public Defenders, all on brief), Baltimore, for appellant.

Tarra DeShields-Minnis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, both on brief), Baltimore, for appellee.

Argued before ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ., and JOHN F. McAULIFFE, J. (Retired, Specially Assigned).

RAKER, Judge.

Appellant Michael Whittlesey was convicted by a jury in the Circuit Court for Caroline County, the Honorable J. Owen Wise presiding, of the first degree murder of James Rowan Griffin. The same jury then sentenced him to death. On this appeal, Whittlesey raises eleven issues for our review. Four of his assignments of error relate to the validity of his conviction:

(1) The State engaged in race discrimination in the use of its peremptory strikes during jury selection, in violation of the Equal Protection Clause of the United States Constitution, as construed in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

(2) Certain statements by appellant were elicited from him in violation of his Sixth Amendment right to counsel and therefore should have been suppressed.

(3) Certain inculpatory statements by appellant should have been ruled inadmissible as uncharged misconduct evidence.

(4) The jury instruction on first degree murder failed to explain adequately the premeditation requirement.

Appellant also presents seven exceptions relating primarily to the penalty phase of his trial. Three of these claims would preclude entirely the imposition of the death penalty in this case:

(1) The Double Jeopardy Clause of the United States Constitution and Maryland's common-law double jeopardy doctrine prohibit the use of the robbery for which appellant was already convicted as the predicate felony underlying the charge of felony murder or as the aggravator in the sentencing phase.

(2) The Maryland death penalty statute, Maryland Code (1957, 1992 Repl.Vol., 1994 Cum.Supp.) Art. 27, § 413, 1 violates the Eighth Amendment to the United States Constitution in two respects. First, by permitting the use of the same act as a predicate felony for felony murder purposes and as an aggravating circumstance in the sentencing phase, the statute fails to narrow sufficiently the class of murders for which capital punishment is imposed. Second, the allocation of the burden of proof as to mitigating circumstances precludes the sentencer from considering a full range of mitigating factors, and the standard of proof prescribed for the final weighing process inadequately guarantees the reliability of the outcome.

(3) The State violated § 412(b) of Article 27 by serving notice of intent to seek the death penalty on appellant's counsel, rather than directly upon appellant.

Appellant's four other objections would require only a new sentencing hearing, at which the State would be free to seek the death penalty again:

(4) The trial court erred in excluding, on grounds of hearsay, certain mitigating evidence offered by appellant.

(5) The trial court's refusal to propound appellant's requested voir dire questions concerning the attitudes of prospective jurors toward the death penalty impaired appellant's efforts to select an impartial jury, in violation of his rights under the Due Process Clause of the United States Constitution, as construed in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).

(6) Appellant's right to due process was violated when he was required to appear before the sentencing jury in leg shackles.

(7) The trial court erred in permitting the State to introduce a videotape as victim impact evidence.

We find no error in the guilt-or-innocence phase of the trial and affirm the verdict of guilty. We agree with appellant's fourth exception to his sentence, however, and we will therefore vacate the death sentence and remand for a new sentencing proceeding.


This case arises out of the disappearance of James Rowan Griffin in 1982. Appellant was convicted in 1984 of robbing Griffin. In 1990, Griffin's remains were uncovered in a state park, and appellant was indicted for the first degree murder of Griffin.

On Friday, April 2, 1982, Jamie Griffin, a 17-year-old senior at Dulaney High School in Timonium, Baltimore County, had two conflicting plans for his afternoon and evening. The first plan was to get together with Mike Whittlesey, who had attended school with Griffin before moving to Joppatowne, Harford County, and enrolling in Joppatowne High School. Griffin asked Whittlesey's mother in advance to give Whittlesey permission to leave school early and go to Washington, D.C., with Griffin, to see an elephant festival; she agreed, and the note she wrote excusing her son from school was admitted into evidence in the instant case. On the afternoon of April 2, Griffin and appellant met in the parking lot of a shopping center in Joppatowne, where appellant introduced his girlfriend to Griffin. She asked when they would return from Washington. Griffin responded that they would be back around 6 p.m.; appellant said, "Tell the truth," and Griffin changed his answer to 10 p.m.

Griffin's other plan for April 2 was to go on a retreat in Cecil County with Young Life, a Christian youth group. At school, Griffin sold some tapes to an acquaintance, promising to deliver them that evening at the retreat. He also called home in the morning and asked his mother to prepare a few items for him to bring on the outing. He planned to run some errands after school and then be home by 4 p.m., so that his father could take him back to the school to meet the Young Life entourage.

When Jamie did not show up on time, his parents searched for him and called the police, who also began looking for him. The Baltimore County Police Department soon identified Michael Whittlesey as the last person known to have seen Griffin alive. They spoke with him on April 3, the day after Griffin was reported missing, and again on April 5 and April 8; at all of these meetings, appellant claimed that he had gone to Washington with Griffin and two other people and gotten separated from Griffin there. Detective Wayne Murphy of Baltimore County also spoke to appellant's father, who said he had received a collect call from appellant, claiming to be in Washington, on April 2; a subsequent examination of phone company records showed that the call actually came from Atlantic City, New Jersey. Based on this clear indication of falsehood, plus various discrepancies in appellant's stories to the police, Detective Murphy applied for a statement of charges accusing appellant of making false statements to a state official, in violation of Art. 27, § 151. Around April 15, a District Court Commissioner in Baltimore County approved the application and issued a warrant for appellant's arrest, which was never served. The police and prosecutors continued to focus their suspicion on appellant, however; he was subpoenaed to appear before the grand jury investigating Griffin's disappearance, and the police put a pen register on his phone to record all of the numbers he called.

Meanwhile, on the night of April 10, eight days after Griffin's disappearance, appellant went out for the evening with David Strathy, a friend from Joppatowne High School. After shooting pool with Strathy well into the morning of April 11, appellant asked Strathy to take him to Gunpowder Falls State Park and help him dig up some gold and silver. Strathy testified that he did not regard the request as suspicious because precious metal prices were high at that time and many people, including both appellant and Strathy, were involved in trading second-hand gold and silver. Once they reached a wooded area of the park, however, appellant told Strathy that he really wanted to bury a body, not dig up gold and silver. He led Strathy to a mound and showed him a sneaker under the coverings at one end of the mound. Strathy testified that the position of the sneaker suggested that it had a foot in it. He used his shovel to remove some dirt at the other end of the mound and discovered what appeared to be a red jacket; he poked this item with the shovel and felt something hard, which he believed to be a shoulder.

Convinced that there was in fact a dead body inside the mound, Strathy immediately left the scene, accompanied by Whittlesey. Back in the car, he asked appellant whose body was there; appellant said it was "a little kid with red hair," a description that fit Jamie Griffin. Strathy anonymously reported the incident about one week after it occurred. He later recounted that he saw police activity around the area he had directed them to, but the police evidently found nothing. Meanwhile, the police learned through their pen register on appellant's phone that he was in frequent contact with Strathy. On June 1, entirely independent of Strathy's anonymous report, the police visited Strathy at work, and he again reported the incident involving the body in the woods. At that time, he led them to what he believed was the site he had visited with Whittlesey, but they again turned up nothing.

The police were nevertheless able to take advantage of appellant's confidence in Strathy. They enlisted him to arrange meetings with appellant to try to elicit information about Griffin's disappearance. During those meetings, on June 2 and 4, 1982, the police outfitted Strathy with a body wire, a small device containing a microphone and transmitter which can be easily concealed. Through this procedure, the police were able to record several conversations between Strathy and appel...

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