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Michael Whittlesey v. State of Maryland - No. 16, 1994 Term CRIMINAL LAW - DEATH PENALTY - SENTENCING - Evidence offered at a capital sentencing proceeding need not satisfy the requirements applicable to trial evidence. CRIMINAL LAW - DEATH PENALTY - SENTENCING - At a capital sentencing proceeding, court should exercise discretion and admit any relevant and reliable mitigating evidence. Ruling that hearsay evidence is per se inadmissible is error. CRIMINAL LAW - SENTENCING - In maintaining courtroom security, decision whether accused should wear shackles must be made by judge personally and may not be delegated to courtroom security personnel. CRIMINAL LAW - DEATH PENALTY - Where defendant is represented by counsel, notice of intent to seek death penalty properly served on defendant's counsel. CRIMINAL LAW - RIGHT TO COUNSEL - Mere fact that State focused investigation on accused will not trigger accused's Sixth Amendment right to counsel. CRIMINAL LAW - RIGHT TO COUNSEL - Sixth Amendment right to counsel is offense specific. CRIMINAL LAW - RIGHT TO COUNSEL - Exception to "offense specificity" requirement of the Sixth Amendment not applicable where false statement charge and murder charge are not "closely related." CRIMINAL LAW - DOUBLE JEOPARDY - Common-law double jeopardy bar does not prevent subsequent prosecution of same defendant for premeditated murder that arose out of same circumstances upon which prior conviction for robbery was based. CRIMINAL LAW - DOUBLE JEOPARDY - SENTENCING - Neither Double Jeopardy Clause nor Maryland common law bars use of prior conviction arising out of same circumstances as aggravating factor in death penalty hearing. EVIDENCE - UNCHARGED MISCONDUCT EVIDENCE - Where probative value of evidence does not depend upon proof that misconduct actually took place, courts should not apply Faulkner clear and convincing requirement in assessing admissibility, but should apply relevance and balancing requirement. EVIDENCE - Evidence of flight is admissible to show consciousness of guilt.

IN THE COURT OF APPEALS OF MARYLAND No. 16 September Term, 1994 ___________________________________

MICHAEL WHITTLESEY v. STATE OF MARYLAND

___________________________________

Eldridge Rodowsky Chasanow Karwacki Bell Raker McAuliffe, John F. (Retired, specially assigned) JJ. ___________________________________ Opinion by Raker, J. Bell, J. concurring in part, dissenting in part. ___________________________________

Filed:

September 28, 1995

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. same jury then sentenced him to death. raises eleven issues for our review. The

On this appeal, Whittlesey 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). Certain statements by appellant were elicited from him in violation of his Sixth Amendment right to counsel and therefore should have been suppressed. Certain inculpatory statements by appellant should have been ruled inadmissible as uncharged misconduct evidence. The jury instruction on first degree murder failed to explain adequately the premeditation requirement.

(2)

(3)

(4)

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. The Maryland death penalty statute, Maryland Code (1957, 1992 Repl. Vol., 1994 Cum. Supp.) Art. 27,

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