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Statement, ballistics excluded in guilty finding

EASTON — Almost 40 years have passed since a Talbot County Circuit Court jury found Merle W. Unger Jr. guilty of first-degree felony murder in the December 1975 shooting of Hagerstown police officer Donald Kline.

Unger was granted a new trial in 2012 by the Maryland Court of Appeals based on the grounds his jury received improper instructions from the judge in the original Talbot County trial.

Off-duty officer Kline caught Unger by surprise during an armed robbery of a store on Mulberry Street in Hagerstown and chased him into a back alley where there was a shoot out between the two.

Kline was found wounded with three shots to his chest and soon after died at a hospital. When police tracked down Unger, they found him in a nearby house, bleeding from gunshot wounds inflicted by Kline.

At his June 10 retrial, Unger’s defense lawyer argued the statement he made to investigating officer Lt. Paul Mentzer in 1975 regarding the crime was “not given freely or voluntarily;” he asked the court to suppress certain ballistics evidence that could no longer be tested on behalf of the defense by an outside expert; and he said information of his previous attempts to escape from prison in the past should not be brought into his present trial (a motion granted by the circuit court in Unger’s April 2013 pre-trial hearings).

The June trial went forward without a jury based on evidence of “stated fact” from the 1976 trial. According to a plea agreement between all the parties, Talbot County Circuit Judge Broughton Earnest decided with the state’s prosecuting attorney Joseph Michael and defense counsel Daniel Ginsburg to strike certain requested elements from the trial record and allow Unger to enter a plea of not guilty. Unger would retain his right to appeal the court’s decision; once the court’s decision was made, Unger would have to opportunity to make an allocution before his sentencing, and the maximum sentence Unger could receive for felony murder would be life in prison with the possibility of parole.

On June 18, Earnest presented his ruling before Unger, the prosecution and the defense. In a written statement, Ernest laid out the facts from the November 1976 motions hearing and jury trial he used to judge the case.

These facts included the story and resulting evidence provided in the original trial of what happened the night Kline came upon Unger after he had robbed Kim’s Korner store in Hagerstown, followed by an outline of the investigation and trial.

Earnest said in his statement his duty was to decide whether Unger was guilty of first-degree felony murder, armed robbery and unlawfully using a handgun in the commission of armed robbery. According to Earnest’s statement, after “considering the facts and applicable law,” he found beyond a reasonable doubt that “on the evening of December 13, 1975, Unger intentionally committed the robbery in question using a handgun, a felony, and, in the course of said criminal transaction, caused the death of Officer (Donald) Kline by gunshot wounds.”

Earnest was explicit, however, that he excluded Unger’s “incriminating” statements to Lt. Mentzer, agreeing with Unger’s defense that the possibility existed he was improperly induced to make those statements. Earnest also opted to exclude the testimony regarding ballistics evidence provided by the FBI in the 1976 trial.

Nevertheless, according to his statement, Earnest found, based on the existing and usable evidence, ample reason to find Unger guilty.

“(I)n light of the overwhelming circumstantial evidence implicating Unger in the robbery, this court does not find it necessary to rely on (certain) testimony in concluding that Unger is guilty beyond a reasonable doubt.”

Unger will again come before the circuit court in Easton sometime in October for sentencing.