Suspect's statement in abuse case allowed as evidence

March 02, 1993|By Traci A. Johnson | Traci A. Johnson,Staff Writer

A Carroll circuit judge ruled yesterday that a statement given to police by a Lineboro man accused of sexually abusing an 11-year-old girl and her teen-age brother can be used as evidence in the man's trial.

Judge Francis M. Arnold agreed with prosecutors that the statement was given voluntarily and obtained legally.

Tfc. Robert Lipsky, of the state police barracks in Westminster, and Ruth Ann Arty, an investigator in the state's attorney's office, testified during yesterday's pretrial motions hearing that they questioned the man at his apartment shortly after the trooper had talked with the children and their parents Oct. 9.

Both children alleged that the defendant, a family friend, had performed sexual acts on them and had them reciprocate on numerous occasions when the children were visiting him.

The children's mother often had let the man take them for visits or short outings, according to court documents.

The boy said he and the man had performed sex acts for about two years, until September 1990. The girl said she had sexual contact with the defendant, including intercourse once, between September 1991 and September 23, 1992.

Trooper Lipsky and Ms. Arty testified that the children told them the acts occurred in the man's apartment and car.

Assistant Public Defender Samuel Truette argued that the defendant was not in a position to make a voluntary statement when the trooper and Ms. Arty questioned him in October.

"He was in his underwear. He had obviously just awakened," Mr. Truette said. "He was at a distinct disadvantage in terms of making a free and voluntary statement."

Assistant State's Attorney Eileen McInerny disagreed.

"It's pretty clear listening to the tape [recording of the statement] that the statement was made voluntarily," she said. "And he invited them [the investigators] in after they told him who they were and what they wanted. There was no indication that he did not want to speak."

Mr. Truette also questioned the sheet from which Trooper Lipsky read the defendant his rights.

"Did you ever specifically say to [the defendant], 'Do you want a lawyer'?" Mr. Truette asked.

Trooper Lipsky did not answer directly, but read from the prepared sheet of rights. Reading from the sheet, the trooper suggested that he had said at the time that the defendant was entitled to a lawyer. But the trooper did not specifically ask if the man wanted one.

"When [Trooper Lipsky] undertook to read him his rights, there was no express waiver anywhere in it," Mr. Truette contended. "I don't think there should be an implied waiver of rights just by reading the rights."

Ms. McInerny said the rights that the trooper read were acceptable so far as informing the defendant that he could have a lawyer if he desired.

Judge Arnold approved the state's motion for the defendant to submit a blood sample for HIV testing. The children's mother requested the test in a letter to the state's attorney's office last month.

Mr. Truette said the defendant would willingly submit to giving a blood sample, but only for HIV testing.

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