Colvin-el v. State

• Decision Date: 01 September 1992
• Docket Number: COLVIN-EL,No. 104,104
• Citation: 630 A.2d 725,332 Md. 144
• Parties: Eugenev. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 144

332 Md. 144

630 A.2d 725

Eugene COLVIN-EL v. STATE of Maryland.

No. 104, Sept. Term, 1992.

Court of Appeals of Maryland.

Sept. 16, 1993.

Michael R. Malloy and Michael R. Braudes, Asst. Public Defenders; (Stephen E. Harris, Public Defender), Baltimore, all on brief, for appellant.

Gwynn X. Kinsey, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen.), on brief, Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, KARWACKI and ROBERT M. BELL and CHARLES E. ORTH, Jr. (Retired, Specially Assigned), JJ.

RODOWSKY, Judge.

This case is a direct appeal from a death sentence imposed by a jury at a resentencing hearing. We shall affirm.

The appellant, Eugene Colvin-el, was convicted in the Circuit Court for Anne Arundel County, in a prosecution removed from Baltimore County, of first degree murder, robbery with a deadly weapon, and daytime housebreaking. That jury sentenced him to death. The trial court did not impose sentence on the additional convictions. Nor did the court consider enhanced punishment for multiple crimes of violence, although the State had notified Colvin-el, through counsel, that it was invoking those provisions as well. We affirmed the judgment. Colvin v. State, 299 Md. 88, 472 A.2d 953 (Colvin-el I), cert. denied, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984).

In post-conviction proceedings the trial court left the guilty verdicts unaffected, but vacated the death sentence. We affirmed because of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and because, under Raiford v. State, 296 Md. 289, 462 A.2d 1192 (1983), the use of "juvenile" convictions against Colvin-el violated equal protection. State v. Colvin, 314 Md. 1, 548 A.2d 506 (1988) (Colvin-el II). Colvin-el brought a second petition for post-conviction relief that the circuit court denied after trial. Colvin-el's application for leave to appeal from that denial was dismissed by this Court without hearing, and the circuit court judgment was vacated for lack of jurisdiction, because the Post-Conviction Procedure Act does not apply to one simply awaiting sentence. Resentencing pursuant to the mandate in Colvin-el II was held and resulted in a jury-imposed death sentence from which this appeal is taken.

On September 9, 1980, between approximately 1:00 and 2:30 in the afternoon Lena Buchman, aged eighty-two, was murdered in her daughter's home at 6806 Cherokee Drive in the Pikesville area of Baltimore County. Mrs. Buchman, a resident of Florida, had flown to Baltimore that morning to visit her daughter, Mrs. Marjorie Surell, ¹ and her family. When the murder occurred both Mr. and Mrs. Surell were at work. Mrs. Buchman was last seen alive, alone in the house, by her granddaughter, Susan Rubin, nee Surell, (Mrs. Rubin), who left shortly after 1:00 p.m., following lunch.

Mrs. Buchman's body was found at approximately 2:30 p.m. by a neighbor who entered the house through the front doorway. The inner wooden door was standing open and the outer screen door was unlocked. Mrs. Buchman's body lay in a hallway that extended from the front door to the kitchen of the split level home. The victim had been stabbed approximately twenty-eight times with a serrated knife ordinarily kept in the Surells' kitchen.

At the subject resentencing hearing, the legal issues were whether Colvin-el was a principal in the first degree to the murder of Mrs. Buchman, whether that murder was committed while Colvin-el was committing or attempting to commit robbery, whether there were any mitigating circumstances found by any juror, and whether the aggravating circumstances outweighed the mitigating circumstances. Md.Code (1957, 1992 Repl.Vol.), Art. 27, § 413 and Maryland Rule 4-343. The State's proof as to the first two issues basically presented the investigation of the crimes.

The principal clues were latent fingerprints, particularly very clear fingerprints on pieces of glass from a broken pane in the door at the rear of the basement. The police concluded that that door was the point of entry. These pieces of glass were found stacked on the steps of the stairwell leading to the rear basement door, which was partially below ground level. The lock in the knob of the door was unlocked, and chain locks on the door frame were found unhooked and dangling. The inference was that the intruder had picked the pieces of glass out of the window after breaking it and before reaching through to unlock the door. The door, which opened inwardly, was closed, but an ironing board that was kept leaning against the inside of the door was found flat on the floor. The investigating officers' report observed that the basement door " 'could be opened, but only approx. 4 inches as there was a white metal storage cabinet on the inside of the door. No other signs of forced entry could be found.' " Colvin-el II, 314 Md. at 9, 548 A.2d at 510.

Excluding "elimination" fingerprints, i.e., those of family and friends, none of the latent prints found inside or outside of the Surell house initially were positively identified. Although Colvin-el had multiple prior convictions in Maryland, the capacity was apparently then unavailable to compare specific, unidentified latent fingerprints against a database of identified fingerprints. Over the months following the murder, the investigating police officers requested the Baltimore County Police Department latent fingerprint examiners to compare the latent prints from the Surell home against copies of the fingerprints of dozens and dozens of known persons who were suspected in any way of being connected to housebreakings in the northwest Baltimore region. This approach had no success. The Baltimore County fingerprint examiners were also routinely comparing the latent fingerprints from the Surell home with identified fingerprints with which they might be working in ordinary course. Further, many pieces of jewelry owned by the Surells were taken from their bedroom during the breaking and entering. That jewelry had recently been appraised, and the appraisal descriptions were circulated to businesses where one or more items of the jewelry might be presented for sale. That approach had no success.

In order to increase the number of identified fingerprints to which the latent fingerprints from the Surell home could be compared, in October 1980 Detective Michael R. Parks of the Baltimore County police enlisted the cooperation of a fingerprint examiner with the Baltimore City Police Department, Sharon Talmadge (Talmadge). Talmadge agreed to compare a photograph of the latent prints from the Surell home with identified prints with which she might be working in ordinary course. After comparing the copy against the fingerprints of approximately 625 people, Talmadge, on January 13, 1981, matched the right thumb of the latent prints with an inked print submitted to her by Baltimore City Detective Martin Colleran. The inked print bore the identification of Colvin-el. Detective Colleran had arrested Colvin-el on January 8, 1981. ² At the time of arrest Colvin-el was carrying his age of majority card, ID No. C-415-237-765-777, in the name of Eugene Sherman Colvin, 615 Brice Street, Baltimore, Maryland 21217. The card is a form of identification issued by the Maryland Motor Vehicle Administration to persons who are not licensed operators of motor vehicles. It contains a face-on photograph of the head of the person identified. Detective Colleran took custody of the card and also submitted Colvin-el's fingerprints for comparison by the Baltimore City Crime Lab.

When Talmadge matched fingerprints identified to Colvin-el with the latent prints from the Buchman murder scene, she advised Detective Parks. Colvin-el was arrested that day on the charge of murdering Mrs. Buchman, and he was processed by the Baltimore County Police Department. Processing included taking a full set of fingerprints that were personally rolled by Detective Parks. Identification cards for each hand were prepared and signed by Colvin-el and by Detective Parks. In addition to a full set of fingerprints and palm prints, the cards contain a description of Colvin-el, who is five foot seven inches in height. He weighed 135 pounds when arrested.

Thereafter Detective Parks, looking for Colvin-el's name, examined the daily transaction sheets submitted by pawnshop operators in Baltimore City to the Baltimore City Police Department. This review led the investigators to Northwestern Loan Company at 1701 Pennsylvania Avenue in Baltimore City. Ledger and pawn ticket records of Northwestern Loan Company record that two watches were pawned there on September 17, 1980, by Eugene Sherman Colvin-el of 615 Brice Street, Zone 17. In transaction 14717, the object pawned was a man's pocket watch that was still in the possession of Northwestern Loan Company when the investigators presented themselves on January 27, 1981. That watch, confiscated by the police, was one of the items taken from the Surell home. The person who pawned the watch was an African-American male who presented age of majority card ID No. C-415-237-765-777. The clerk who handled the transaction, Armand Kessler, testified that in every instance of a transaction in which a picture identification was presented he compared the picture to the person presenting the identification. In transaction 14661, handled by a different clerk, Colvin-el pawned a man's wristwatch that was confiscated by the police and identified at trial as an item taken from the Surell home.

In the defendant's case the trial court accorded considerable liberty in allowing evidence of sightings of persons considered by the beholders to be "suspicious." This evidence ranged well beyond the 6600 block of Cherokee Drive on the afternoon of September 9, 1980. The defense also produced evidence relating to police activity in investigating persons suspected of, or arrested for, breaking and entering, whose...