Ellerba v. State

• Decision Date: 13 March 1979
• Docket Number: No. 259,259
• Citation: 41 Md.App. 712,398 A.2d 1250
• Parties: Charles ELLERBA alias Alphonso Davis v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 712

41 Md.App. 712

398 A.2d 1250

Charles ELLERBA alias Alphonso Davis v. STATE of Maryland.

No. 259.

Court of Special Appeals of Maryland.

March 13, 1979.

David W. Skeen, Assigned Public Defender, for appellant.

F. Ford Loker, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., for Baltimore City and Jonathan Shoup, Asst. State's Atty., for Baltimore City on the brief, for appellee.

Argued before MOORE, MELVIN and LISS, JJ.

MOORE, Judge.

Appellant, Charles Ellerba, alias Alphonso Davis, was convicted by a jury in the Criminal Court of Baltimore (Kaplan, J.) on December 8, 1977 of two charges of arson. He was thereafter sentenced to two consecutive 20-year terms. On appeal, he argues six assignments of error by the trial court: (1) appellant did not freely and voluntarily waive his right to counsel on May 31, 1977 and, therefore, it was error to admit statements made by him at a custodial interrogation on that date; (2) appellant did not breach the June 9, 1977 agreement between himself and the State in which the State promised not to use appellant's May 31, 1977 statements in return for appellant's cooperation and, consequently, it was error to admit his May 31 statements; (3) the court should not have admitted evidence, from any source, of other arsons allegedly committed by appellant; (4) appellant's motion for a separate trial on each of the two indictments should have been granted; (5) the evidence was insufficient to convict appellant of the arson of 12 South Calhoun Street; and (6) the evidence was insufficient to convict appellant of the arson of 2470 Shirley Avenue.

I

On May 24, 1977, appellant was arrested and charged with the arsons of 12 South Calhoun Street, 2470 Shirley Avenue, and 516 North Pulaski Street. The latter charge was subsequently Nol prossed. Bail was set at $250,000. Assistant State's Attorney Jonathan Shoup, Detective John Dillon, and Sergeant Paul Lioi first met with the appellant on May 25. After the Miranda rights were read to the appellant, he indicated he wanted a lawyer. Following appellant's request and before appellant was returned to his cell, the men asked appellant several routine questions, not concerning the fires. No incriminating statements were elicited.

James Gitomer was retained tentatively as defense counsel on May 26 by appellant's wife and mother. A possible conflict of interest, later determined to be nonexistent, necessitated the tentative nature of the appointment. On May 27 appellant and Gitomer met. Assistant State's Attorney Shoup, who was handling the case, was aware of this meeting but did not record it nor notify others in the State's Attorney's office before he departed on May 27 for a two-week tour of duty in the Army National Guard.

Thereafter, on May 30, Detective Dillon was notified by Sheila Mack, appellant's girlfriend, that he wished to talk with them. A writ of habeas corpus was issued and appellant was brought to the State's Attorney's office on May 31, where Detective Dillon, Sergeant Lioi, and Assistant State's Attorneys Howard Gersh and Michael S. Glushakow were present. It was later testified that all of these individuals were unaware that appellant was represented by counsel.

Before any questioning commenced, Gersh, as a precaution, thoroughly explored with appellant his reasons for wanting to talk. Appellant replied that he was tired of being used by his "employers" and he no longer wanted to take the blame alone for the fires. Gersh, after he was satisfied that appellant had voluntarily and intelligently reached his decision, repeated to Ellerba his Miranda rights, but appellant, indicated, in writing, that he did not want a lawyer present. ¹

Following the waiver of counsel, appellant proceeded to discuss his involvement in six fires. None of the fires appellant discussed were involved in the indictments. Appellant described, in elaborate detail, schemes to defraud insurance companies whereby he was paid by one William Goldberg and one Al Rachelson to set fires to various properties they owned in Baltimore City. According to Gersh, appellant, a home improvement specialist by trade, described himself as a "furnace man." He drew for Gersh a detailed diagram of his method of setting fires. Appellant said he would lower the thermostat, turn off the electrical current, splice the wire running from the thermostat to the furnace, and then run more wires off the main wire. These wires were exposed. Appellant would then place a flammable liquid near the wires surrounded by some type of flammable substance. Depending on the outside temperature, appellant would set the thermostat at an appropriate degree so that it would trigger the furnace after he had left. When this occurred, the electrical current passed through the exposed wires which would ignite the flammable substance, causing the fire. Appellant admitted starting 6 or 7 fires using this method, including properties at North Pulaski Street, Boyd Street, Groveland Avenue, and 1825 and 1827 West Baltimore Street.

Although appellant's statements made during this meeting were later reduced to written form by his interrogators, he did not sign them. During the questioning session, appellant agreed that he would testify to the same information before the grand jury the following day. However, before the questioning was concluded, defense attorney Gitomer, who had discovered appellant was being questioned without his knowledge, burst into the State's Attorney's office in an outrage. Curiously, according to the testimony of Gersh, appellant said that he did not know Gitomer nor did Gitomer represent him. Because of this confusion, Gersh suggested that Gitomer and appellant go into the next room to discuss the matter. Later, the two men emerged from their discussion with appellant apparently accepting Gitomer as his counsel and, at the latter's request, an agreement was made to cancel appellant's grand jury appearance for the next day.

The appellant and the State subsequently entered into a written agreement on June 9, 1977 whereby the appellant agreed to cooperate with the State and the grand jury in the arson investigations then being conducted by the office of the State's Attorney. In return, the State promised appellant: there would be no further indictments against him; the May 31 statement would not be used against him; and there would be a recommendation for his release on $5,000 bail and notification of the sentencing judge of appellant's cooperation. It was a condition of the agreement that appellant give "truthful testimony" and provide "reasonable cooperation" throughout the investigation. If appellant failed to honor his commitments, the agreement would become null and void and the State would then be free, among other things, to use the statement and to charge him "in any matters."

Pursuant to this agreement, appellant testified before a special session of the grand jury, giving the same information he related to his interrogators on May 31. His testimony led to the indictments of William Goldberg and Al Rachelson. Subsequent to these indictments, information was uncovered which placed the truthfulness of appellant's testimony at issue and resulted in the dismissal of the Goldberg and Rachelson indictments. Between July and October, the State repeatedly attempted to locate appellant to question him further but efforts to locate him were fruitless. According to the State, appellant had thus breached the agreement, thereby releasing it from the promises made to appellant and freeing it to use his statements in his trial scheduled for October 13, 1977.

On the initial day of trial, the court first took testimony on appellant's motion to suppress his May 31 statements. The witnesses were Detective Dillon, Mr. Gersh, Mr. Shoup, and the appellant. The court ruled that the appellant freely and voluntarily waived his right to counsel. Furthermore, it was held, appellant had breached the June 9 agreement, therefore permitting the State to use his May 31 statements. Appellant's motion for a severance, which accompanied the motion to suppress, was also denied, the court stating that severance was "not legally required."

At trial, the State first presented testimony concerning the incendiary nature of the fire at Shirley Avenue which occurred on January 22, 1977. When the blaze occurred, the house owned by appellant and his wife was being remodeled. According to Battalion Chief Fred R. Schwartz, Jr., who had ordered a "complete second alarm assignment" after he had arrived on the scene, the fire, apparently originating in the basement, moved through the dumbwaiter shaft to other levels of the dwelling, the damage being heaviest in the stairway area. A separate fire had started in the upstairs bedroom. In the basement, there were few burn marks on the furnace. A five-gallon can with the residue of what appeared to be flammable paste, resembling tile paste, was found there.

Qualified as an expert in the field of fire investigation, Captain Robert Hatoff of the Fire Investigation Bureau of the Baltimore City Fire Department, testified that "the fire was incendiary in origin." Hatoff said that the debris and the unusual burn patterns indicative of burning from flammable liquid caused him to conclude that arson had been perpetrated. Hatoff also testified that soon after the fire apparatus had arrived, appellant appeared at the scene and identified himself as owner. In response to his questioning, Ellerba said he had been "in and out" of the Shirley Avenue premises during the day. Hatoff asked him to remain for further questioning. Appellant, however, disappeared. Following his testimony and that of several other witnesses, Captain Hatoff was permitted, over objection, to be present in the courtroom during the testimony of Assistant State's Attorney Gersh. Captain Hatoff thereafter testified, using for illustration pictures...