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Judge splits on evidence allowed in Merle Unger's trial in officer's death

Statements Unger made police will be admitted, evidence of two of his escapes will not

April 08, 2013|By DON AINES | dona@herald-mail.com
  • Convicted police killer Merle W. Unger Jr. is escorted by law enforcement officials as he arrives at the Washington County Courthouse Friday, Dec. 8, 2006, in Hagerstown. Unger, now in his early 60s, is serving a life term plus 40 years for fatally shooting Officer Donald Kline after an armed robbery in December 1975. Unger is seeking a new trial partly on the grounds that his jury received improper instructions from the judge.
Chris Gardner/AP

EASTON, Md. — Statements Merle Unger made to police almost four decades ago about the killing of Hagerstown Police Officer Donald Kline can be used in a new trial set for June, although the state will not be allowed to introduce evidence of two escapes he made after the shooting, according to a ruling by a Talbot County (Md.) Circuit judge.

Unger, now in his early 60s, was convicted in 1976 of felony murder in the Dec. 13, 1975, shooting death of Kline, who was off duty when he came upon an armed robbery of a store on Mulberry Street in Hagerstown. Kline pursued Unger into an alley where there was an exchange of gunfire.

Kline was fatally wounded and Unger was tracked to a house where he was found on the basement floor, bleeding from a gunshot wound.

Unger was granted a change of venue in his first trial, which was held in Talbot County. His new trial, beginning June 10, will also be held in that county, court records said.

A suppression hearing was held in Talbot County Circuit Court on three defense motions on April 2, and Talbot County Circuit Court Judge Broughton M. Earnest issued his ruling two days later, court records said.

Unger appealed the case unsuccessfully until filing a post conviction relief petition in 1996. Ten years after that petition was filed, a Washington County Circuit judge overturned Unger’s conviction because the 1976 trial judge had issued improper “advisory” jury instructions, Earnest wrote in his ruling.

One motion was to suppress statements Unger made to a police lieutenant while recuperating in a hospital from his gunshot wound, court records said. Unger asserted that the statements were not freely and voluntarily given because the officer, now deceased, promised to help a girlfriend in exchange for a confession, court records said.

In his ruling, Earnest wrote that Unger had raised this issue in previous appeals and that he had been properly advised of his Miranda rights at the time of the 1975 interview by the officer.

Unger also asked the court to be allowed to reassert objections, or assert new objections to testimony in the 1976 trial “with respect to any transcripts to be read into evidence” at his new trial.

“In his motion ... Mr. Unger also asserts a variety of new objections based on the testimony of certain witnesses who have passed away,” including the owner of the store, former police chief Clinton Mowen and the officer who conducted the hospital interviews, Earnest wrote.

Earnest agreed with the state’s position that Unger “should be barred from making objections he could have raised on direct appeal, but did not,” the ruling stated.

As far as new objections, Earnest wrote that “Unger waived these objections by not asserting them in the 1976 trial.” Earnest also wrote that he had made preliminary rulings at last week’s motions hearing, finding the newly asserted objections were without merit.

Earnest did rule in Unger’s favor on the issue of the state admitting evidence of Unger’s pretrial escape in 1976 and post-conviction escape from the Patuxent Institute in 1981. The state argued that the escapes were evidence of “consciousness of guilt,” court records said.

The judge ruled that information could be prejudicial against Unger.

“Due to the passage of time, this Court fears that the jury might speculate that Mr. Unger might have escaped after having already been found guilty on the very charges they are to consider anew,” Earnest wrote.

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