Behrel v. State

Citation823 A.2d 696,151 Md. App. 64
Decision Date07 May 2003
Docket Number No. 00751, No. 00750
PartiesKenneth Kurt BEHREL v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Gregory C. Bannon (Bannon & Balon, on brief), Hagerstown, for appellant.

Zoe Gillen White, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., HOLLANDER and RAYMOND G. THIEME, JR., (Retired, Specially Assigned), JJ.

HOLLANDER, J.

Kenneth Kurt Behrel, appellant, a former Episcopal pastor,1 was convicted in the Circuit Court for Washington County of sexually abusing Matthew Curtis (the "Curtis trial"), and, at a separate trial, of sexually abusing Jeffrey Miller (the "Miller trial"). The court sentenced appellant to two consecutive twelve-year terms of imprisonment for his violations of Md.Code (1957, 1996 Repl. Vol.), Art. 27, § 35C. This consolidated appeal followed.2

From 1980 to 1985, appellant, then in his 30's, served as the chaplain, a teacher, and a "Hall Master" at Saint James School ("SJS" or the "School"), an Episcopal boarding school near Hagerstown. In 1985, he moved to Illinois, where he served as rector of Saint Andrew's Parish until February 5, 2001. The victims, Miller and Curtis, were high school boarding students at SJS during appellant's tenure as chaplain.

As to both trials, appellant asks us to consider whether the circuit court erred in denying his motion to suppress evidence seized from his residence in Illinois pursuant to a search warrant. The warrant was issued about sixteen years after the alleged crimes occurred, and the search pertained to appellant's residence in Illinois, a location unrelated to the place of the alleged offenses. Therefore, appellant claims the search warrant was founded on stale information rather than probable cause. In addition, we are asked to resolve whether the court below erroneously admitted "other crimes" evidence at the Curtis trial by allowing Miller to testify to appellant's abuse of him. Finally, we must determine whether the trial court abused its discretion at the Miller trial by denying appellant's motion for mistrial after Miller alluded to appellant's abuse of others.

Behrel frames three questions for our review, which we have reformulated slightly:

I. With respect to both trials, did the circuit court err in denying appellant's motion to suppress evidence recovered during the execution of the search warrant issued for appellant's residence in Illinois?

II. Did the trial court err in admitting "other crimes" evidence at the Curtis trial?

III. Did the trial court err in denying appellant's motion for mistrial in the Miller trial?

For the reasons that follow, we shall affirm appellant's conviction in the Miller trial, vacate appellant's conviction in the Curtis trial, and remand that case for further proceedings.

I. THE MOTIONS TO SUPPRESS
A. Factual Summary

On December 11, 2000, Behrel was charged with the sexual child abuse of both Curtis and Miller. Following appellant's indictments, the Maryland State Police contacted the authorities in Illinois, to obtain and execute a search warrant for 302 Buckingham Drive in Grayslake, Illinois, where appellant then resided. Louis Archbold, a special investigator with the Lake County prosecutor's office, was assigned to the matter. An Illinois search warrant was issued on February 2, 2001, and executed by the Grayslake, Illinois Police Department on February 5, 2001, in the presence of Trooper First Class ("TFC") Michael Potter of the Maryland State Police. During the search, the police seized a footlocker that matched the description of a trunk provided by Curtis and Miller. Pornographic materials found inside the footlocker were also seized.

Claiming that the information supporting the warrant was stale, appellant moved in both cases to suppress the footlocker and the pornographic materials. He argued that the warrant did not establish probable cause, because the events described in the affidavit occurred some sixteen years earlier and in another state. At the joint hearing held on August 13, 2001, Potter testified for the State; appellant did not present any witnesses. What follows is a summary of the evidence adduced at the hearing.

The investigation of appellant began on April 10, 1998, when Curtis reported to the Flathead County, Montana Sheriff's Department that, from 1983 to 1985, while he was a high school student at SJS, appellant repeatedly subjected him to sexual abuse. During a recorded interview, Curtis claimed that the abuse began with fondling and progressed to oral sex and sodomy in appellant's SJS campus apartment. In addition, Curtis reported that appellant had sodomized another student named Jeff Miller. Further, Curtis disclosed that appellant stored pornographic material and sexual aids in a footlocker that he used as a coffee table in his campus apartment. Curtis's complaint and interview were forwarded to the Maryland State Police for further investigation. After the matter was assigned to Potter, he met with Curtis. According to Potter, Curtis reiterated the claims that he had made to the Montana Sheriff's Department, including the information regarding appellant's sexual activities with Miller.

Potter also stated that Miller was located in Alexandria, Virginia about six to nine months later. He obtained a formal statement from Miller on June 29, 2000. Miller told Potter that, while he was a student at SJS from 1981 to 1984, he was sexually abused by appellant in appellant's campus apartment. According to Miller, the abuse progressed from fondling to fellatio and sodomy. Further, Miller recalled that appellant had a "foot locker" that he "used as a coffee table ...," in which appellant stored photographs that he took of Miller "in sexual positions against [his] will." Although Miller acknowledged that he knew of Curtis, he claimed he had "no real dealings with him," and the two were not friends.

On cross-examination, Potter admitted that the alleged abuses occurred in Maryland; there were no allegations that any of the offenses had occurred at appellant's residence in Illinois. Moreover, Potter acknowledged that the abuse had occurred some fifteen to twenty years prior to the execution of the warrant. Potter also conceded that he had no "direct evidence" of anything in appellant's residence in 2001 that would constitute evidence of the alleged offenses. The Complaint for Search Warrant ("the Complaint") was admitted in evidence, along with the supporting affidavit executed by Archbold. The items sought in the search included:

[A] footlocker and/or storage trunk, photographs and videos depicting child pornography, inhalants (i.e.: "Rush"), written correspondence, computers, computer hardware, computer disks, and all items related to the offenses of criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse and aggravated criminal sexual abuse and child pornography.

In his affidavit, Archbold relied entirely on information provided to him by Potter. Because the content of the affidavit is central to the issue of staleness, we quote from it at length:

Your affiant states that he was contacted by Trooper First Class, Michael Shane Potter, a member of the Maryland State Police, regarding Father Kenneth K. Behrel of St. Andrew Parish in Grayslake. Trooper Potter has been with the Maryland State Police for 27 years. He completed the Maryland State Police Academy and is certified as a police officer in the State of Maryland. Trooper Potter has an Associates [sic] Degree in Administration of Justice from Hagerstown Junior College and a Bachelor of Science Degree in Criminal Justice from the University of Baltimore. In addition Trooper Potter has attended numerous training courses including courses dealing with child abuse, crimes against persons and child pornography. Trooper Potter has been assigned to criminal investigations for the past twelve (12) years. During Trooper Potter['s] police career he has been involved in the execution of 40 search and seizure warrants in Washington County, Maryland. Trooper Potter has investigated and assisted in over 300 crimes involving child abuse and sexual offenses. Trooper Potter has also attended in-service schools with the Maryland State Police, seminars and other classes dealing with child abuse and sexual offenses. Trooper Potter has learned through his training that sexual offenders tend to keep mementoes of prior acts along with pictures and videos.

Your affiant states that Trooper Potter related the following facts regarding Father Kenneth K. Behrel; [sic] On April 10, 1998, victim Matthew Curtis made a complaint to investigators at the Flathead County, Montana Sheriff's Department that he had been the victim of sexual assaults in Washington County, Maryland. A recorded statement of the victim was taken and forwarded to the Hagerstown Barracks of the Maryland State Police. In his statement, the victim alleged that he lived on campus as a student at St. James School. He attended classes at the school between September 1982 and June 1986. The victim said the sexual abuse by Father Kenneth Behrel, a priest who lived in the apartment on campus, began around January or February 1983. The last sexual encounter between Behrel [and Curtis] was sometime in 1985. As the school priest and instructor at the school, Behrel was responsible for the care and supervision of the students, including the victim. The abuse began with Behrel fondling the victim's penis. The abuse always occurred in Behrel's campus apartment. The abuse progressed to Behrel performing oral sex on the victim, the victim performing oral sex on Behrel, and Behrel performing sodomy on the victim. On many occasions, Behrel masturbated the victim and on at least one occasion the victim masturbated Behrel. During these sexual encounters,Behrel would get a pornographic video movie from a footlocker that he used as a...

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