Colvin v. State

Decision Date16 March 1984
Docket NumberNos. 84,s. 84
PartiesEugene Sherman COLVIN v. STATE of Maryland. Sept. Term 1981 and 114 Sept. Term 1981.
CourtMaryland Court of Appeals

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender and Martha Weisheit, Asst. Public Defender, Baltimore, on the brief), for appellant.

Deborah K. Handel and Jillyn K. Schulze, Asst. Attys. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

COUCH, Judge.

Eugene Sherman Colvin, the appellant, was found guilty by a jury in the Circuit Court for Anne Arundel County, of first degree premeditated murder, felony murder, robbery with a deadly weapon, and daytime breaking and entering. Colvin selected a jury to conduct the sentencing proceeding pursuant to Maryland Code (1957, 1982 Repl.Vol.), Article 27, § 413; following this proceeding the jury imposed the death penalty. The matter is now before us for review, as provided for by Article 27, § 414.

The parties have agreed to a statement of facts from which the underlying events giving rise to this case may be gleaned. The victim, Lena Buchman, was an 82 year old resident of Florida. On September 9, 1980, at 11:00 A.M., she arrived in Baltimore to visit her family. That same afternoon Mrs. Buchman was alone in the home of her daughter, Marjorie Sorrell, when she was stabbed to death. A neighbor found her in the Sorrell home at approximately 2:30 P.M. Police and emergency units were dispatched to the home and Mrs. Buchman was flown to the Shock Trauma Unit of the University of Maryland Hospital, where she was pronounced dead at 4:23 P.M. An autopsy revealed a total of twenty-eight stab wounds on the body.

Entry into the Sorrell house apparently had been gained through a basement door. A glass pane in the door was found to have been broken and the chain locks were un-hinged. A subsequent search of the premises revealed that all of Mrs. Sorrell's jewelry was missing, as well as a Timex wristwatch and a pocketwatch. As Mrs. Sorrell had recently had all her jewelry appraised and inventoried, she was able to provide police with detailed descriptions of her jewelry as well as photographs, in addition to serial numbers on the pocketwatch.

The investigation focused on the appellant when latent fingerprints, lifted from the pieces of glass from the basement door, were matched with known prints of Colvin. Moreover, the investigation disclosed that on September 17, 1980, Colvin pawned the Sorrell pocketwatch and a Timex wristwatch. The pocketwatch carried the same identification number as the watch taken from the Sorrell residence and the Timex wristwatch was identified by Mrs. Sorrell as the one taken from her house. The pawnbroker who negotiated the loan for the pocketwatch testified regarding the circumstances of that transaction. He stated the person pawning the watch showed him an age of majority card for identification. That card issued by the Department of Motor Vehicles was in the name of Eugene Sherman Colvin and the signature and picture on the card matched the person pawning the watch. The pawnbroker noted the age of majority card number on the receipt. Additionally, a Department of Social Services card number, C-032679, was also noted on the receipt. At trial a Social Services employee testified that appellant had a case number and that any identification card issued to him would have carried the number 032679. Further facts necessary to a decision of the various issues raised by this appeal will be supplied in our discussion of those issues.

The issues which we must consider 1 generally fall into five categories: (1) pre-trial, (2) trial, (3) post-trial, (4) proportionality sentence review, and (5) constitutionality of Maryland's death penalty statute. We shall discuss these issues seriatim.

(1)

The pre-trial matters in which Colvin claims error concern the denial of his motion to suppress certain evidence and its subsequent admission at trial. Additionally, he asserts that the trial court erred in failing to conduct a proper inquiry after he demonstrated an inclination to waive counsel.

(a)

As to the first of these issues, we find no merit in appellant's contention that the age of majority card referred to above was erroneously admitted. The appellant testified that the card must have been found in an illegal search of his home, whereas a police officer testified that it was discovered at police headquarters during a routine search of the appellant. As the testimony on the circumstances attending the seizure of the card was in direct conflict the trial judge was required to weigh appellant's credibility against that of the detective in determining the legality of the search. Maryland Rule 886 provides:

"When an action has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses."

Appellant produced no evidence to substantiate his claim of an illegal search other than his testimony. Therefore, the rule is applicable to the trial judge's determination that the card was found during a search at the police station, incident to an arrest. We do not find the determination of the lower court in this instance to be clearly erroneous.

The trial judge, in ruling the card admissible, commented, inter alia, that it was routine to pat a suspect down for protection purposes at the police station. Because the officer had testified that he was specifically looking for the card at this time, the appellant argues the trial judge erred in admitting the card. This is so, he contends, because the trial judge either forgot this testimony or disregarded it. The Court finds this argument to be without merit. The Supreme Court has held that the fact of a valid arrest furnishes justification for a search for evidence incident thereto. In United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the Court made clear that the Fourth Amendment permits the police to search fully the person of an arrestee, stating:

"A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but it is also a 'reasonable' search under that Amendment." Id. at 235, 94 S.Ct. at 477, 38 L.Ed.2d at 440-41.

Subsequently, in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), the Court made plain that Robinson's search for evidence incident to arrest rule extended to stationhouse searches when it stated:

"both the person and the property in his immediate possession may be searched at the station house after the arrest has occurred at another place and if evidence of crime is discovered, it may be seized and admitted in evidence." 415 U.S. at 803, 94 S.Ct. at 1237, 37 L.Ed.2d at 775-76.

Under Robinson and Edwards it is inconsequential that the search took place at the police station, or that the officer was looking for the age of majority card. It is the fact of a valid arrest which furnishes the justification for a search incident thereto in order "to preserve evidence on his person for later use at trial." United States v. Robinson, supra, 414 U.S. at 234, 94 S.Ct. at 476, 38 L.Ed.2d at 440.

Colvin then argues that when the factual basis of a ruling is articulated, those facts must appear in the record. We are not certain just where this argument is intended to lead us, but our review of the record persuades us that the trial judge gave several reasons for his ruling. These included a belief in the officer's testimony; the recording of the search at the police station in an official report by the officer before the question became an issue; the routine nature of a search of the person arrested; and the lack of Colvin's credibility because of his prior criminal record, and the fact that appellant had "the most to lose by having this card admitted." We cannot say the trial judge was clearly erroneous in his factual conclusions and thus find no error in the denial of Colvin's motion to suppress this evidence.

(b)

The appellant next argues that the trial court erred in failing to conduct a proper inquiry after appellant demonstrated an inclination to waive counsel. What precipitated this issue may be quickly set forth. Prior to trial, the appellant had filed a motion by which he was seeking the dismissal of the public defender as his attorney and the appointment of an attorney of his own choice at the expense of the state. This motion was denied, but remade at trial. During the hearing on this remade motion the appellant also moved the court to allow him to defend himself "to a degree." Both motions were denied. The appellant now argues error in that the trial judge did not make an inquiry to determine whether there was an unequivocal waiver of counsel based on our holding in Snead v. State, 286 Md. 122, 406 A.2d 98 (1979). We believe appellant's reliance on Snead is misplaced. There, Snead asked for a continuance to allow his family to engage the services of a different attorney since he was dissatisfied with the assigned public defender. When the court refused to grant the continuance Snead stated, "I don't want no attorney then." Id. at 126, 406 A.2d at 100. We concluded that Snead's declaration that he did not want an attorney was sufficient to require an inquiry to...

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