Buettner v. State

• Decision Date: 07 January 1964
• Docket Number: No. 101,101
• Citation: 196 A.2d 465,233 Md. 235
• Parties: Daisy O. BUETTNER and Robert Lee Bowyer. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 235

233 Md. 235

196 A.2d 465

Daisy O. BUETTNER and Robert Lee Bowyer. v. STATE of Maryland.

No. 101.

Court of Appeals of Maryland.

Jan. 7, 1964.

E. Thomas Maxwell, Jr., Baltimore, for appellants.

Russell R. Reno, Jr., Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., William J. O'Donnell, State's Atty. and Andrew J. Graham, Asst. State's Atty. for Baltimore City, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, PRESCOTT, HORNEY and MARBURY, JJ.

PRESCOTT, Judge.

After conviction of murder in the first degree by a judge, sitting without a jury, in the Criminal Court of Baltimore, and being sentenced therefor, appellants seek relief in this Court.

Only two questions are presented for determination: (1) was there an illegal search of certain premises and an unlawful seizure of property offered in evidence against the appellants; and (2) was the evidence sufficient to support a finding of guilty of murder in the first degree?

At 4:15 a. m., on July 12, 1962, Officer Faller was patrolling his beat. He was informed that a 'man' was lying in a nearby alley. He immediately went to the alley and found the badly battered dead body of Robert J. Shipley. The body was covered with blood, and the clothes thereon were ripped and torn. It was lying beneath a partially-opened window, which was about twelve feet above the alley and a part of the premises known as 7 W. Preston Street. It later developed that Shipley had been dead for some time before his body was discovered.

Additional police were summoned, and, after observing the dead body, some of them spoke with the occupants of the basement apartment at 7 W. Preston Street, Mr. and Mrs. Brown. The officers were advised that at approximately 1:30 a. m., the Browns had been awakened by noises coming from the upstairs apartment. The noises were described as being that of a person being 'hit hard against the floor or either he was being stomped.' The Browns heard the victim moaning, and heard him say, 'please don't take the last five dollars I have--that is all I have got for my family to eat on.' They also advised the police they heard a man demand the victim's car keys and driver's license, and a woman's voice say, 'if you don't keep quiet I will stomp you in the face.' Then they heard a noise 'like someone being hit real hard--a big gasp,' and, after quietness for about fifteen minutes, a 'thud' outside their bedroom window at about 2:30 a. m.

The police concluded their interview with the Browns at about 5:00 a. m.; then they went upstairs to the second-floor apartment, opened the door and entered it. Observing that no one was there, but that a recent bloody struggle had taken place there, the police proceeded to search the apartment, take photographs, and process certain objects for finger prints. These photographs, a finger print belonging to appellant Buettner, a blood stained rug, and certain items found upon the premises belonging to the deceased were admitted into evidence, over objection, at the trial. Some of the items belonging to the deceased were his identification papers, which were found in the commode. The evidence disclosed that the victim had had a wallet and money, but a search of his person revealed neither.

We turn now to a brief history of the appellants. The appellant Buettner had been living at her and her husband's apartment residence in Baltimore with her husband and her nephew, the appellant Bowyer. On June 23, 1962, she left her husband, and, accompanied by her nephew, took a meandering trip down into Virginia. On or about July 4, 1962, they arrived at 7 W. Preston Street, where they spent the first two nights in the basement apartment and then moved upstairs. Although Buettner and her husband were separated, he went to see her and the nephew, and, on occasion, drank with them at public taverns.

On July 11, 1962, all three of them were drinking at such a tavern. The deceased was also there. According to the appellants, there came a time when Bowyer wanted to go home, but his aunt was not yet ready. Bowyer and Buettner's husband left and went to the apartment. Buettner then started drinking with the deceased, and, after about one hour, she invited him to take her home, which he did. Her arrival with a male companion angered her nephew, and he struck Shipley, knocking him down (and he 'smashed [Shipley] a few more times'), and smacked his aunt. Without giving their additional testimony in detail, they both claimed that Buettner's husband was present at the apartment and it was he who killed Shipley. ¹ (Bowyer admitted, however, that he had taken the car keys from the victim and moved his automobile.) Thereafter, all three left and went to the husband's apartment, it being the former residence, mentioned above, of the husband, wife and nephew. Here, at about 3:00 a. m., approximately an hour or an hour and a half before the police searched the Preston Street apartment, the appellants, at the suggestion of Buettner's husband (according to the appellants), decided to leave town. Mr. Buettner advised appellants that 'he would give them the money to leave town on.' Arrangements for their departure were completed the next day, and, after the purchase of articles of clothing by the appellants and being driven by private car to Washington, D. C., in order to avoid possible detection, they boarded a bus for Altavista, Virginia, where (still according to their story) they were, later, to meet Mr. Buettner, and then they and Mr. Buettner would 'all leave together.' Several days later, the appellants were apprehended in Altavista and returned to Baltimore for trial. The record does not show that Mr. Buettner was in Altavista at the time of their arrest.

Judge Harlan found them guilty of murder in the first degree under Code (1957), Article 27, § 410, on the theory they had committed a murder in the perpetration of a robbery.

I

Appellants contend that the entry into 'their apartment' without a warrant, and the seizure of evidence therein were clearly illegal, which rendered the seized evidence and the testimony of the police as to their observations while in the apartment inadmissible. They, of course, cite Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. And they also cite Hall v. Warden, 313 F.2d 483 (C.A. 4); Walker v. Peppersack, 316 F.2d 119 (C.A. 4); Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; and United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59.

It is true that Mapp extended to state criminal prosecutions the prohibition against the use by the State in a criminal proceeding of evidence obtained as the result of an illegal search and seizure. ² However, the Fourth Amendment, which is, of course, controlling does not proscribe all searches and seizures made without a search warrant, but it inhibits 'unreasonable' searches. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Givner v. State, 210 Md. 484, 124 A.2d 764. We, therefore, proceed to a consideration of whether the search and seizure herein made were reasonable.

There can be little doubt that the general rule is that a search of private premises should be pursuant to a legally issued warrant. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). However, the courts have recognized exceptions to this general rule; and one of those exceptions permits the search of a...