Anderson v. State

• Citation: 9 Md.App. 532,267 A.2d 296
• Decision Date: 23 June 1970
• Docket Number: No. 360,360
• Parties: Raymond ANDERSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 532

9 Md.App. 532

267 A.2d 296

Raymond ANDERSON v. STATE of Maryland.

No. 360.

Court of Special Appeals of Maryland.

June 23, 1970.

Certiorari Denied Oct. 13, 1970.

James W. McAllister, Baltimore, with John D. Hackett, Baltimore, on brief, for appellant.

John J. Garrity, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen.; Charles E. Moylan, Jr., States Atty., and George A. Eichhorn, III, Asst. States Atty. for Baltimore City, on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

THOMPSON, Judge.

Raymond Anderson, the appellant, was convicted in the Criminal Court of Baltimore on two counts of receiving stolen goods, and one count of maintaining a common nuisance i. e. a dwelling house, for the sale of illegal narcotic drugs. Judge George D. Solter, sitting without a jury, imposed sentences of eighteen months on each of the receiving convictions to run concurrently with each other but consecutive to a ten year term being served for another offense; he also imposed a sentence of two years on the disorderly house conviction to run concurrently with the ten year term. Anderson complains the search warrants were invalid, a copy of the warrants were improperly admitted into evidence, the evidence was insufficient to support each of the convictions and a double jeopardy violation occurred in the common nuisance conviction.

At about 8:00 P.M. on April 2, 1968, while two police officers were conducting a surveillance of the activities of Anderson, they observed one Stephen Xikouloutakis go into the house at 414 N. Madiera Street which was occupied, according to the officers, by the appellant, Raymond Anderson, and his common law wife and co-defendant, Geraldine Hopkins. Anderson testified denying he lived with Hopkins but admitted that he was the father of four of her five children who had been born within the preceding three or four years and that he visited the property every day for the purpose of seeing his children and Geraldine. Stephen Xikouloutakis stayed at the home only a few minutes before leaving in her car. The officers followed him until the automobile stopped for a red light. When the officers left their automobile and approached Mr. Xikouloutakis' automobile, Mr. Xikouloutakis opened the door and threw out a vial which burst disclosing six or seven white gelatin capsules containing a white powder later identified to be heroin.

Continuing their surveillance the next day, April 3, 1968, at about 4:10 P.M. the officer observed the appellant and co-defendant Geraldine Hopkins moving furniture from 414 N. Madiera to 404 N. Madiera Street. The following day, April 4, at 8:00 P.M., they observed an unidentified white male enter 404 N. Madiera Street and stay a few minutes and come out. On Saturday, April 20, 1968, at about 6:55 P.M., the officers observed Lee Wilkins, an Indian male known to the officers to be a narcotic addict, in an automobile containing two other known addicts, Adam Wames and Joseph Palugi. The officers observed Mr. Wilkins walk up to the front of 404 N. Madiera Street where Anderson gave something to Mr. Wilkins. The officers followed the Wilkins car and stopped it in a few blocks. When Mr. Wilkins saw the officers approaching, he threw white capsules into his mouth. The officers were unsuccessful in preventing Wilkins from swallowing the capsules. In searching the car the officers found an improvised syringe and a bottle cap containing a residue later identified as heroin. The other two occupants of the car had fresh needle marks on their arms.

On April 27, 1968, at about 1:25 P.M. Robert Guido, also known to the police officers as a drug addict, stopped his automobile in front of 404 N. Madiera Street, entered the house and came out in a few minutes. When the officers stopped their vehicle, they observed him throw into his mouth white capsules which were not recovered. A search of Mr. Guido revealed an improvised needle and syringe.

Based on these observations, the officers typed an original and three carbons of an application for a search warrant which was issued by Judge Aarson Baer in the Municipal Court of Baltimore in the presence of the officers. The officers kept the original copy of the warrant until after it was executed when they returned it on May 3 1968 at 3:00 P.M. to the issuing court. Lieutenant Michael A. Ford testified that at the time of the preliminary hearing on November 12, 1968, it was discovered that the warrant was missing. He and the two officers conducting the surveillance searched the records of the Chief Clerk of the Municipal Magistrate's Court where such warrants are kept but they were unable to locate the original. One of the surveillance officers testified that in addition to searching in the magistrate's office, they searched their own files and the issuing Judge's bench and desk with his permission. A carbon copy of the warrant was admitted into evidence over objection.

When the officers executed the warrant at about 1:00 P.M. on May 1, Hopkins was seated on the steps of 402 N. Madiera Street while Anderson and one Raymond Eugene Byrd were standing in the doorway of 404. As the men saw the officers approach, they ran into the house, slammed the door and ran up to the second floor. In a lining in Mr. Byrd's hat, the officers found three white tablets which were thought to be barbiturates by the officers. The officers also removed two bottles of clear liquid and a spoon, none of which showed traces of narcotics. The only prohibited drugs found were the three tablets which were shown to be methodone, a synthetic prohibited narcotic drug. During the search, the officers observed a considerable amount of new furniture, noted the serial number of a Motorola stereo and noted the erasure of the serial number on a television. They also observed a quantity of new clothing, some of which had tags that read Dora's Thrift Shop, 517 N. Chester Street.

At police headquarters, the officers found that the Motorola stereo had been stolen from the Elgin Sales Company on April 6, 1968, and that many items of clothing had also been stolen from Dora's Thrift Shop on that date. The officers returned to the Municipal Court and obtained a second search warrant to search for the stolen property. They immediately executed the warrant and seized the stereo mentioned above and the clothes bearing tags from Dora's Thrift Shop. After a bench conference at the specific request of the court and defense counsel, the State's Attorney made the following proffer:

'MR. EICHHORN: State would proffer that the evidence as to this particular warrant, which has just been referred to, that is, search and seizure as to certain goods found in 404 N. Madiera Street, would be the same offered by the State; that is, the testimony of Officer Cohen as to typing the warrant up would be the same, the search that was made by Lt. Ford and Officer Santivasci for this same warrant and affidavit would be exactly the same as was just heard in court.'

After a long colloquy between court and defense counsel, counsel finally stated:

'I will make my same objection, of course, Your Honor, for the same reason I objected to the first warrant.

'THE COURT: I will overrule that and reserve any other grounds that you made on the original warrant based on the grounds this isn't the original.

'MR. McALLISTER: All right, Your Honor.'

In his biref, appellate counsel makes the bald statement there was no testimony as to the loss of the second warrant. Although the record is somewhat confused, it is apparent that all persons present understood that a stipulation was made that the loss of the original of the second warrant was under the exact same circumstances as the loss of the first. ¹

Mr. Xikouloutakis testified that on April 2, 1968, at about 8:00 P.M. he purchased ten capsules of heroin from Raymond Anderson for $20. at a house in the 400 block N. Madiera Street and when questioned as to the address of the house stated: 'I believe it was 404.' Other witnesses established the theft of the Motorola stereo and five items of children's clothing from Dora's Thrift Shop, all of which were seized in the execution of the second search warrant. The thefts occurred April...