Bell v. State, 1164

• Citation: 429 A.2d 300,48 Md.App. 669
• Decision Date: 12 May 1981
• Docket Number: No. 1164,1164
• Parties: Marie Lanier BELL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 669

48 Md.App. 669

429 A.2d 300

Marie Lanier BELL v. STATE of Maryland.

No. 1164.

Court of Special Appeals of Maryland.

May 12, 1981.

Gary W. Christopher, Asst. Public Defender with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Ann E. Singleton, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Maryland, Richard D. Warren, State's Atty. for Wicomico County and Stephanie J. Lane, Asst. State's Atty. for Wicomico County, on the brief, for appellee.

Argued before MORTON, LOWE and COUCH, JJ.

LOWE, Judge.

Marie Lanier Bell has appealed her convictions of conspiracy to batter and conspiracy to murder from the Circuit Court for Wicomico County, presided over by the Honorable Lloyd Simpkins. She previously appealed a denial of dismissal on double jeopardy grounds arising from a mistrial. Bell v. State, 41 Md.App. 89, 395 A.2d 1200 (1979); aff'd, 286 Md. 193, 406 A.2d 909 (1979). She was not successful on that occasion; she will not succeed on this one either.

I.

Her first argument in this appeal is that the trial court erred in admitting evidence of unlawful wiretaps because the affidavit on the application violated Md.Cts. & Jud.Proc.Code Ann. § 10-408(a)(3) by failing to include

"A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous...."

Section 10-408(c) of the Courts Article is the express authority for issuing the order. It authorizes its issuance only "if the (issuing) judge determines on the basis of the facts submitted by the applicant" that four requisites of inclusion have been met, one of which is that "(n)ormal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." § 10-408(c)(3). The applicant submitted in this case, along with the applications, an affidavit by one of the investigating officers.

Appellant claims that the affidavit "consisted of nothing more than an exhaustive recitation of the substantial investigative measures undertaken in the three days from the commission of the crime until the application." The hearing judge in denying the motion to suppress, indicated that it was unnecessary to state or allege specifically that other investigative procedures appeared unlikely to achieve a necessary investigative goal.

"Both Federal and State Courts have held in determining the sufficiency of an application for wiretap order, the test is a practical and common sense manner. The State, in a criminal case, is not required to exhaust all investigative procedures before resorting to wiretap. I think that we all would agree with that. In the McCoy case, United Sates vs. McCoy, it says that common sense dictates that the purpose of the statute is not to foreclose electronic surveillance until every other manner has been unsuccessfully attempted, but simply to inform the issuing judge of the difficulties involved in use of conventional techniques, and that all that needs be found in the affidavit is factual predicate to support a finding that other techniques appear unlikely to succeed."

It was sufficient, he believed, if an issuing judge could read into the affidavit, together with the application, that other investigative procedures had been tried and failed, or that "other techniques appear unlikely to succeed."

Chief Judge Gilbert pointed out in Calhoun v. State, 34 Md.App. 365, 374, 367 A.2d 40 (1977), ¹ that the legislative history of the federal wiretap statute (along which lines our own was tailored, see Baldwin v. State, 45 Md.App. 378, 380, 413 A.2d 246 (1980), aff'd, --- Md. ---, 426 A.2d 916 (No. 34, September Term, 1980, filed March 10, 1981)), noted in regard to the parallel provision to § 10-408(a)(3) that

" 'Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely. What the provision envisions is that the showing be tested in a practical and common sense fashion. (citation omitted)' " (Emphasis added by Judge Gilbert).

The government need not prove to a certainty that such techniques will not succeed if as stated in the statute it "reasonably appear(s) to be unlikely to succeed." See, United States v. Webster, 473 F.Supp. 586, 595 (D.Md.1979). The application, which is to be read along with the affidavit (Calhoun, supra at 373, 367 A.2d 40), synopsized the investigative measures undertaken which the affidavit exhaustively recited (as conceded by appellant), and concluded that these were exhaustive of any relevant investigative procedures pertinent to that which was being investigated.

"4. OTHER INVESTIGATIVE PROCEDURES employed to date have included all avenues of regular investigations of homicide, including interviews of all persons known to be related to or to have been acquainted with the victim, neighborhood canvasses, fingerprint dusting, ballistic studies, post-mortem examination. To date such procedure has yielded nothing more substantial than has been related above. Crime Laboratory scene identification and surveillance of the Suspects have likewise provided no useful information. No further investigative measures are available at the Present."

The issuing judge could certainly "determine on the basis of the facts submitted by the applicant" that:

"Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed...." § 10-408(c)(3).

It is difficult for us to see what more the state could say or do in reciting or trying appropriate techniques. While a "normal investigative technique included in the aforementioned legislative history," Calhoun, supra at 374, 367 A.2d 40, the "infiltration of conspiratorial groups by undercover agents or informants," was not mentioned in the application, such procedure may have been "theoretically possible" with only two conspirators, but "it does not follow that it is likely." It hardly needs but a small sampling of "common sense" or pragmatism to recognize that two persons are unlikely to be "infiltrated."

It was, furthermore, implicit in the affidavit and explicit in the application that

"The nature of the relationship between Marie L. Bell and Ralph D. Mason, Jr. is such, and the nature and subject of the conspiracy is such that several conversations, each containing only partial disclosures, is reasonably anticipated. Further, as police investigative efforts present constantly changing stimuli, more frequent contact between the parties may occur."

It was also implicit in the application that the conspirators having carried out their purpose were avoiding a sense of public togetherness, obviously to avoid suspicion. The affidavit concluded with a paragraph pointing out that there was

"additional information which the police have learned and which neither (of the conspirators) know, and which, when disclosed to Marie Bell will cause her to make efforts to immediately contact Ralph Mason, Jr. Further, based upon Affiant's own observations as set forth above, your Affiant believes that the relationship between Ralph Mason, Jr. and Marie Bell is a continuing relationship which will involve further telephone contact."

The issuing judge could easily "determine on the basis of the facts submitted" that the conspirators were likely to conspire by telephone exclusively in covering up that which had been brought to fruition by the murder of Mr. Bell, and that unless one is privy to such conversations the investigation will be thwarted. If such information so exhaustively detailed and synopsized is not sufficient for a judge to determine that normal investigative procedures have been tried and have failed or would be "unlikely to succeed if tried," our interpretation of the rigid compliance requirement of Giordano and of State v. Siegel, 266 Md. 256, 292 A.2d 86 (1972), would be absurd rather than "strict." It was clear to the issuing judge and to the judge hearing the suppression motion, and it is clear to us, that the wiretap

"procedures were not... routinely employed as the initial step in criminal investigation." United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974),

which is the danger the provision in question was intended to guard against. As pointed out by the trial judge, the statute was not intended to foreclose electronic surveillance, but rather, as Giordano suggests, it is to assure an issuing judge by showing the unlikelihood of success, or the prior failure of routine procedures, that wiretapping is not being asked for as an initial convenience. See also, Calhoun, supra at 377, 367 A.2d 40. In this case we are wont to wonder what else the state might have done to comply.

II.

Appellant's contention that she was not present at a "stage of the trial" (because she was absent when a hearing resumed on a motion to suppress) smacks of the specious. Appellant was free on bond, according to the docket entries, and was present at the initial hearing when counsel commenced the discussion of the motion to suppress wiretap evidence. After some argument her attorney indicated that he would submit an additional memorandum of law on the issue. The prosecutor argued briefly but reserved further comment until he received the additional defense memorandum.

Although the docket entry indicates her absence at the subsequent resumption, at no time thereafter when appearing before the court did appellant object or complain; not at the trial, nor upon motion for new trial did she raise the issue, nor does she now allege any prejudice. But even if appellant had not waived the issue for purposes of appeal, it would have availed her naught. The cases upon which she relies are distinguishable. In none of these cases was the hearing commenced and argued, then continued to permit the defendant to submit memoranda. Her failure to appear at the resumed...