Whittlesey v. State

• Decision Date: 01 September 1991
• Docket Number: No. 78,78
• Citation: 606 A.2d 225,326 Md. 502
• Parties: Michael WHITTLESEY v. STATE of Maryland
• Court: Maryland Court of Appeals

Page 502

326 Md. 502

606 A.2d 225

Michael WHITTLESEY v. STATE of Maryland.

No. 78 Sept. Term, 1991.

Court of Appeals of Maryland.

May 13, 1992.

Thelma J. Thompson, Acting Deputy Dist. Public Defender, Towson and George E. Burns, Jr., Asst. Public Defender, argued and on brief (Stephen E. Harris, Public Defender, Baltimore, on brief), for appellant; and Michael Whittlesey, pro se.

Gary E. Bair, Asst. Atty. Gen., argued and on brief (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.

Argued before ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI, ROBERT M. BELL, JJ., and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (retired), Specially Assigned.

CHARLES E. ORTH, Jr., Judge, Specially Assigned.

On this appeal, the sole question presented is whether the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States prohibits the prosecution of Michael Whittlesey for the murder of James Rowan Griffin, known as Jamie. ¹

I.

The double jeopardy issue stemmed from Jamie's disappearance on 2 April 1982. He was missing for eight years. On 24 March 1990 his remains were discovered, buried in Gunpowder State Park, Baltimore County, Maryland.

Jamie's disappearance and the discovery of his remains led to the return of two indictments. The first indictment, hereinafter referred to as "the robbery indictment," was filed in the Circuit Court for Baltimore County on 6 July 1982. It alleged in five counts that one Michael Whittlesey committed two offenses against the person of Jamie: (1) common law robbery, and (2) assault with the intent to rob; two offenses of theft of Jamie's property: (1) a cassette tapeplayer, and (2) 17 tape recordings of various artists; and an offense of theft of a silver colored 1975 Ford Granada automobile belonging to Jamie's father, Norville Griffin. Each of the crimes was alleged to have been committed on 2 April 1982. On 16 February 1984 a jury in the Circuit Court for Baltimore County found Whittlesey guilty of all the offenses charged. Upon appropriate mergers of the convictions, the court sentenced Whittlesey to imprisonment for a total of 25 years. The judgments were affirmed by the Court of Special Appeals. Whittlesey v. State, filed 30 January 1985, unreported, cert. denied, 303 Md. 297, 493 A.2d 350 (1985). ² The second indictment, hereinafter referred to as "the murder indictment," was filed in the Circuit Court for Baltimore County on 23 April 1990. It charged Whittlesey with the premeditated murder of Jamie on 2 April 1982. The State gave notice that it intended to seek a sentence of death if Whittlesey was found guilty of murder in the first degree. Whittlesey suggested that the cause be removed to another jurisdiction for trial, and it was transferred to the Circuit Court for Caroline County. Whittlesey filed a motion to dismiss the indictment. Upon a plenary hearing, the motion was denied. Whittlesey appealed from that judgment. On our own motion, before the appeal was heard and decided by the Court of Special Appeals, we ordered that a writ of certiorari issue to that court.

II.

The saga of Jamie's fate was told at the hearing on the motion to dismiss. We glean the transcript of the proceedings at that hearing.

A.

Among the exhibits at the hearing on the motion to dismiss was the transcript of the trial of the robbery indictment. The transcript reflects the events leading to the return of that indictment. We summarize the testimonial and tangible evidence adduced at the trial.

Jamie was the son of Norville and Louella Griffin. At the time of his disappearance he was five feet four inches tall, weighed 95 pounds and was distinguished by red hair. He suffered from asthma for which he took medication. On 2 April 1982 he left his home for school about 7:40 a.m., driving his father's silver colored 1975 Ford Granada. He had permission to drive the car to school because of his asthmatic condition. He was dressed in blue jeans, a red shirt, a black light-weight jacket and blue and white tennis shoes. He took with him his tape recorder, a number of tapes and his wallet containing a sum of money. He was to return home by 4:00 p.m. so his father could drive him back to his school to meet a bus which would take a group of students to Dulaney School to attend a meeting of "Young Life" a "Christian Organization." Jamie had not returned by 4:30 p.m. His parents were concerned. "Jamie has never been this late without calling and letting us know." Mr. Griffin asked his wife to call the police. He went to Dulaney School to find his son.

Michael Whittlesey came into the picture early on. He was Jamie's friend and "spent a lot of weekends" at the Griffin home. Jamie was not at the school, but Mr. Griffin received information indicating that his son and Whittlesey were seen together in the Griffin automobile and planned to go to the Joppatowne Shopping Center. Mr. Griffin went to Joppatowne but did not find either Jamie or Whittlesey.

About 2:45 p.m. on 2 April 1982, Whittlesey's girl friend saw him and Jamie at the Joppatowne Shopping Center. According to her, they told her that they were going to Washington, D.C. and would return about 10:00 p.m. She saw them enter a car, Jamie driving and Whittlesey in the rear seat. In reply to her question why Whittlesey was sitting in the back, he replied that his legs were too long. Due to Jamie's stature, he could only drive the car with the front seat as far forward as it would go, "all the way up to the steering wheel," and even then had to have a thick pad at his back.

Mr. Griffin did not get home from his search for Jamie until about 10:00 a.m. the next day. When he arrived home he went to the Cockeysville Police Station in response to a call that Whittlesey was there. He met Whittlesey outside the station. Whittlesey told Mr. Griffin that he and Jamie had gone to Washington in the car, accompanied by two friends in a van. He and Jamie spent the night in Washington in the car and the two friends slept in the van. When Whittlesey awoke the next morning, Jamie was gone. He left a note that he and the other two persons had gone to get something to eat and directed Whittlesey to drive the car to Golden Ring Mall. Whittlesey went to the mall and found the van but not Jamie or his other friends. He went into the mall to look for them but did not find them, and when he came out the van and the car were gone. When Mr. Griffin questioned this story, Whittlesey assured him that "there's nothing wrong with Jamie. Jamie is fine."

Whittlesey contacted the police on his own initiative and, it appeared that, at first, he gave them the same accounting of his activities with Jamie as he gave Mr. Griffin. He also volunteered a similar story to several other persons but, at times, with significant variations. When his girl friend talked to him on the phone two days after she saw him at the shopping center, he told her that Jamie "had dropped him off" the day before at Golden Ring Mall. He was interviewed several more times by the police, and there were discrepancies in his statements as to what took place in Washington and how he came back to Maryland. In any event, there soon appeared good reason to believe that the alleged trip to Washington was no more than a figment of Whittlesey's imagination. Whittlesey had arranged to visit his father, who lived in Reisterstown, Maryland, on the night of 2 April 1982. About 7:00 p.m. the father accepted a collect call from his son, which, at the time, the father understood from Whittlesey, was being made from Washington, D.C. The father's telephone bill, however, established that, in fact, the call emanated in Atlantic City, New Jersey.

On 21 May 1982 an officer of the Atlantic City Police Department saw an automobile with a Maryland license parked on South Texas Avenue in Atlantic City near the Playboy Club, which Whittlesey had frequented in the past. The car was in the vicinity of the phone booth from which the call to Whittlesey's father had been made. The vehicle was towed to the police tow lot and subsequently released to the Baltimore County Police Department. It proved to be the Griffin automobile. When Mr. Griffin saw his automobile after it was recovered he noted that it had been driven some four or six thousand miles more than when he last saw it. The trunk lock was smashed out and the thick pad that Jamie used when driving the car was in the trunk. It also had a dent in the right front fender which had not been there.

David Strathy was a friend of Whittlesey. They shared a common interest in playing pool and drinking beer. On the night of 10 April 1982 they were pursuing their interests. Whittlesey asked Strathy if he "wanted to go dig up some gold and silver." They fetched a shovel from Whittlesey's home and drove in Strathy's car to Gunpowder State Park behind Golden Forty off Route 7 near the Baltimore County-Harford County line. When the car was parked, Whittlesey informed Strathy that there was no gold or silver but he wanted Strathy to help him bury a body. Whittlesey led Strathy to a wooded area on the Baltimore County side, and after getting his bearings, stopped at a little mound covered with pine needles. He said, "Look this could be a foot." He wiped away some of the pine needles disclosing a tennis shoe. Strathy took the shovel and scraped away more of the pine needles to check if there really was a body. He uncovered a red shirt and a jacket. At that point, before actually seeing a body, Strathy said that he was getting out of there. He took Whittlesey home forthwith.

Strathy talked to Whittlesey a few days later. Whittlesey offered Strathy $40 to help bury "the body." Strathy told Whittlesey that he "didn't want to have nothing to do with him, not to bother me anymore." Strathy saw a missing person poster concerning a James Griffin. The description on the poster "kind of made [Strathy] decide that it probably was a body back there...