Wiggins v. State

Decision Date10 February 1999
Docket NumberNo. 121,121
Citation724 A.2d 1,352 Md. 580
PartiesKevin WIGGINS v. STATE of Maryland.
CourtMaryland Court of Appeals

Stuart M. Rennert (Donald B. Verrilli, Jr., Gregory P. Magarian, Elena N. Broder, Heidi D. Kitrosser, Jenner & Block, on brief), Washington, DC, for Appellant.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Appellee.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ WILNER, Judge.

In 1989, appellant was convicted by Judge J. William Hinkel, sitting in the Circuit Court for Baltimore County, of the robbery and first degree murder of Florence Lacs and two counts of theft. A jury summoned to determine the appropriate punishment for the murder found that appellant should be put to death, and, upon that verdict, Judge Hinkel imposed a sentence of death. We affirmed that judgment in Wiggins v. State, 324 Md. 551, 597 A.2d 1359 (1991), cert. denied, 503 U.S. 1007, 112 S.Ct. 1765, 118 L.Ed.2d 427 (1992), rejecting appellant's claims that the evidence was legally insufficient to establish that he was the murderer and that the trial court erred in denying his motion for new trial.

In January, 1993, appellant filed a petition for relief under the Post Conviction Procedure Act (Maryland Code, Article 27, § 645A), ultimately raising 38 claims embodying 52 issues, among which were that he was denied the effective assistance of counsel at both his trial and his sentencing proceeding. After an extensive evidentiary hearing, the hearing judge, John F. Fader, II, announced from the bench his tentative conclusion that counsel had been deficient in at least two respects—failing at trial and at sentencing to elicit evidence from the assistant medical examiner regarding her initial determination as to the approximate time of Ms. Lac's death, and failing at the sentencing proceeding to present certain mitigating evidence—but he reserved judgment as to whether those deficiencies were sufficiently prejudicial to warrant post-conviction relief. Judge Fader indicated that a written opinion would be filed within 60 days. In October, 1997—three-and-a-half years later—he filed a 257-page opinion finding no Constitutional deficiencies at either the trial or the sentencing proceeding and therefore denying relief.

We granted appellant's application for leave to appeal that determination. Five issues are presented in the appeal, which we have reordered as follows:

(1) Whether trial counsel provided Constitutionally ineffective assistance at trial and sentencing by failing to "bring to light" evidence of a prior inconsistent opinion on the part of the State's medical expert regarding time of death;

(2) Whether trial counsel provided Constitutionally ineffective assistance (A) at trial by failing timely to obtain a forensic expert, thereby requiring appellant to choose between a jury trial without an expert and a court trial with one; and (B) at sentencing by failing to investigate, offer evidence of, or object to jury selection procedures in Baltimore County (3) Whether trial counsel provided Constitutionally ineffective assistance at the sentencing proceeding by failing to investigate and offer mitigation evidence concerning appellant's traumatic background and mental problems;

(4) Whether appellant was denied Constitutional rights when the State failed to disclose an agreement to treat his girlfriend, Geraldine Armstrong, leniently; and

(5) Whether the evidence was legally sufficient to support (A) his conviction of murder in the first degree; or (B) the jury's finding that he was a principal in the first degree in the murder of Ms. Lacs.

For the reasons stated in this Opinion, we shall affirm the denial of post-conviction relief.

BACKGROUND

The 77-year old victim, Florence Lacs, resided in the Clark Manor Apartments, in Woodlawn. When she failed to attend a scheduled social event on Saturday, September 17, 1988, a friend reported her missing. At the request of the police, the apartment manager entered Ms. Lacs's apartment to investigate and found her dead in the bathtub. She was lying on her side, half covered by cloudy water. It appeared that a household cleaner and a bug spray had been poured or sprayed on her. She was wearing a white blouse and a blue skirt, but had on no underwear. The skirt had been raised to her waist. The apartment had been ransacked. Paramedics, who arrived shortly thereafter, formally pronounced Ms. Lacs dead at about 3:50 in the afternoon. The deputy medical examiner, Dr. Stanley Felsenberg, arrived around 9:00 p.m., and, while there, had the body removed from the tub, examined it, and caused it to be sent to the medical examiner's office, where, near midnight, it was tagged and refrigerated. Dr. Margarita Korell, an assistant medical examiner, performed an autopsy at 9:00 the next morning, September 18, 1988. There is evidence that the death certificate completed by Dr. Korell estimated the time of death as Friday evening, September 16, 1988.1 Dr. Korell listed the cause of death as drowning and the manner of death as homicide.

Appellant was a painter who had been working with a construction crew in the victim's apartment building on Wednesday, September 14, and Thursday, September 15. At some point on Thursday, Ms. Lacs asked him to move a truck that was blocking her car. Ms. Lacs attended a social event with some of her friends that afternoon but had returned to her apartment by 5:00 p.m. She was seen conversing with appellant in the hallway just outside her apartment between 5:00 and 5:50. Chianti Thomas, a twelve-year-old child visiting a friend at the next-door apartment, testified that Ms. Lacs's assistance was sought in locking the door to the friend's apartment, that appellant appeared from the basement and volunteered his assistance, and that she heard Ms. Lacs and appellant briefly converse about "watching" some sheetrock. That was the last time Ms. Lacs was seen alive.

On Thursday evening, around 7:45 p.m., appellant arrived at the home of his girlfriend, Geraldine Armstrong, driving the victim's car. He and Ms. Armstrong went shopping, using the victim's credit cards, which appellant told Ms. Armstrong belonged to his aunt. They repeated that activity the next day (Friday, September 16) as well. On Saturday, they pawned a ring that belonged to Ms. Lacs. Appellant and Armstrong were arrested on September 21, while driving Ms. Lacs's car. Upon his arrest, appellant claimed that he had found the car, with the keys, credit cards, and ring in it, on Friday, on a restaurant parking lot. That, of course, was inconsistent with the otherwise undisputed fact that he was in possession of the car and the credit cards on Thursday evening.

Principally on this evidence, the State charged appellant with first degree murder, robbery, and theft, and sought the death penalty. Appellant, represented by Carl Schlaich and Michelle Nethercott, waived a jury trial and elected to be tried before Judge Hinkel. After a four-day trial, Judge Hinkel found appellant guilty of robbery, first degree felony murder, and theft. Appellant then elected to have his sentence on the murder conviction determined by a jury, which was summoned for that purpose. After a six-day hearing, the jury found that appellant was a principal in the first degree, that the murder was committed in the course of robbing the victim (an aggravating factor), that appellant had not previously been convicted of a crime of violence (a mitigating factor), that the aggravating factor outweighed any mitigating factors, and that the sentence should be death.2 While automatic review of that judgment was pending in this Court, appellant moved for a new trial, which Judge Hinkel denied. As noted, we affirmed the judgments, and the United States Supreme Court denied appellant's petition for certiorari.

DISCUSSION
Time of Death

The evidence of appellant's guilt, at least of murder, was almost entirely circumstantial, there being neither eyewitness testimony nor physical evidence directly connecting appellant to the murder itself or to the interior of Ms. Lacs's apartment. The State's theory was that appellant had entered Ms. Lacs's apartment between 5:00 and 5:30 on Thursday afternoon, robbed her, and, in the commission of the robbery, forced her into the bathtub and drowned her. Her death may have been facilitated by her significant cardiovascular disease, which was listed on the death certificate as a contributing factor.

The State's case rested essentially on seven facts or circumstances: (1) the fact that Ms. Lacs was seen by friends as late as 4:15 p.m. on Thursday, September 15, in her car, wearing a blue skirt and a white blouse; (2) when found dead on Saturday in the bathtub, she was wearing a blue skirt and a white blouse;3 (3) the fact that her weekly TV Guide had programs marked through September 15, with no markings for the 16th or beyond; (4) although appellant finished work at 4:45 p.m. on Thursday and had no particular reason to remain on the premises, he was seen with Ms. Lacs in the hallway outside her apartment between 5:00 and 5:30 p.m., which was the last time anyone saw her alive; (5) his explanation to his supervisor, who saw him at the apartment building some 25 minutes after appellant finished work, that he needed to move some sheetrock and the supervisor's response that (i) he had not asked appellant to move any sheetrock, (ii) moving sheetrock was not part of appellant's job, and (iii) in any event, moving the sheetrock should not have taken more than a few minutes; (6) appellant's possession and unlawful use of Ms. Lacs's automobile, credit cards, and jewelry later that evening; and (7) incriminating statements that appellant allegedly made to two fellow inmates during his pre-trial detention. Judge Hinkel, in announcing his verdict, gave no weight to the testimony of the two fellow inmates.

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