Gaudio v. State, 253

• Decision Date: 27 June 1967
• Docket Number: No. 253,253
• Citation: 230 A.2d 700,1 Md.App. 455
• Parties: Charles Michael GAUDIO and Joseph Peter Bucci v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 455

1 Md.App. 455

230 A.2d 700

Charles Michael GAUDIO and Joseph Peter Bucci v. STATE of Maryland.

No. 253.

Court of Special Appeals of Maryland.

June 27, 1967.

Francis S. Brocato, and Joseph S. Kaufman, Baltimore, for appellants.

Thomas P. Perkins, III, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., and Edward F. Engelbert, Chief, Retail Sales Tax Division, Baltimore, J. Thomas Clark, State's Atty., for Queen Anne's County, Centreville, on brief, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and WILLIAM J. O'DONNELL, Special Judge.

ORTH, Judge.

On October 10, 1966, appellants were convicted of the felonious transportation of untaxed cigarettes in violation of Maryland Code (1965 Replacement Volume), Art. 81, § 455, as amended, in the Circuit Court for Queen Anne's County, Judge Thomas J. Keating, presiding without a jury. Each appellant was fined $3,000. Counsel for the appellants on this appeal did not represent the appellants at the trial below.

The only question presented on this appeal is whether there was an illegal search and seizure.

On May 21, 1965 a truck, which appeared to be loaded with lumber driven by the appellant, Gaudio, and in which the appellant Bucci was a passenger, was stopped by a trooper of the Maryland State Police for a traffic violation of improper passing. As Gaudio was not a resident of Maryland he was informed by the trooper that he had to post bond in the amount of $28. Maryland Code, (1967 Replacement Volume), art. 66 1/2, §§ 320-321. The truck was driven by Gaudio under escort of another trooper to Centreville so the bond could be posted. It was parked in front of the Centreville jail when the arresting trooper arrived on the scene. Bond had not as yet been posted. As the trooper walked by the truck toward the appellants, who had gotten out of the truck, he observed that although it appeared to be loaded with two by four pieces of lumber, the overload springs were not down. He looked more closely and saw that the lumber was fastened by a 'flimsy bolt just around there for looks they looked like'. He went to the back of the truck and discovered that the lumber was actually only the ends of two by fours nailed to a piece of plywood and 'then there was no doubt in (his) mind there was a false load on the truck'. At this point the testimony of the trooper, admitted without objection, was as follows:

'I walked back up to the two gentlemen, Mr. Gaudio and Mr. Bucci, and I looked at Mr. Gaudio and I says, 'You have cigarettes on that truck, don't you? I know that I said, 'You have cigarettes on that truck' and he says, 'Yes, Sir'. I said, 'How many'? He said, '2,000 cartons'. I said, 'Do you mind if I look inside?' He says, 'No, Sir. Go Ahead', and started walking back and started taking pins out trying to open the gate for me. The gate, he had trouble getting it open. He tried to wiggle it back and forth, and I said, 'I am going to get a hammer to get this out', and I said, 'Well, we will have to check in the jail to see if they have got one', and we all went in the jail and found a pair of pliers in there, and I removed the back and lifted it up, and when I lifted it up I saw a tarpaulin in there with something under it, and I lifted up the tarpaulin and pulled the paper back, each package was wrapped individually with paper. By package I mean a carton, not a small carton, a ten pack carton. I think they come about 24 or 48 to a carton of cigarettes, and they were wrapped individually with brown paper. I tore this off of one carton out there and checked the seals for the State tobacco stamp and they didn't have any stamps on them at all. I then placed thm under arrest and advised them of their rights.'

It was stipulated that the cigarettes found on the truck, 3,098 cartons of ten packs each, were turned over to the Cigarette Tax Unit of the office of the Comptroller of Maryland and that none of the packs bore a tax stamp. The piece of plywood with the ends of the two by fours nailed to it and six photographs of the truck were admitted in evidence without objection. At the close of the State's case, a motion for a directed verdict of acquittal on the ground that the search and seizure and the arrest that followed were illegal was made and denied. This motion is treated as a motion for judgment of acquittal. Maryland Rule, 755 a. By thereafter offering evidence, the appellants withdrew this motion. Maryland Rule, 755 b.

Gaudio, testifying on his own behalf, said that when the trooper thought he saw something that was not right on the truck, he took the keys and said, 'Open the door. You have cigaretts in here'. He did not deny that he admitted cigarettes were in the truck. He denied giving permission to search the truck and when the trooper asked him to open the back, said, 'I am not going to open anything. I am not opening anything'. Whereupon the trooper said, 'If you don't open it I will open ti', got a pair of pliers or some tool and opened the truck. The trooper then told him he was under arrest. He testified on cross examination that Bucci lived near him in New York but just went along for the ride because Bucci had no job and he had left Bucci off in Baltimore and picked him up on the way back from North Carolina where he got the cigarettes. He got the money to buy the cigarettes from a man named 'Tommy', last name unknown. Bucci took the stand, denied knowing the cigarettes were on the truck, and testified substantially the same as Gaudio except that while Gaudio said he asked Bucci to go with him, Bucci said he asked Gaudio to take him. He also stated the trooper said, 'you have got cigarettes in there', and did not deny Gaudio said, 'Yes, sir'. At the close of all the evidence the motion for a directed verdict of acquittal was renewed and denied. Under Maryland Rule, 775a This is again considered as a motion for judgment of acquittal. There was in evidence, by stipulation or introduced without objection, the admission of Gaudio that there were cigarettes on the truck, the untaxed cigarettes and he piece of plywood with the false ends of lumber nailed to it and the photographs showing that the truck had been rigged in such a manner as to give the appearance that it was transporting lumber, while in fact it was transporting untaxed cigarettes in a hidden compartment. The first question is whether this evidence was properly admitted. Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) held that evidence obtained in an illegal search and seizure may no longer be used in a state prosecution, but it recognized that state procedural requirements to raise or preserve the question may still be respected in the case of an alleged violation of the Fourteenth Amendment. Porter v. State, 230 Md. 535, 187 A.2d 870 (1963); Shorey v. State, 227 Md. 385, 177 A.2d 245 (1962). Maryland Rule, 522 d 2 provides:

'Every objection to the admissibility of evidence shall be made at the time when such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent, otherwise the objection shall be treated as waived'.

In Porter v. State, supra, no objection was made to the introduction in evidence of articles that had been stolen until the end of the State's case at which time counsel for the appellee moved that evidence pertaining to the recovery of those articles be stricken, because there was no showing on the part of the State that there was a valid search and seizure. It was renewed at the conclusion of the entire case on the grounds of illegal search and seizure. The Court of Appeals held that the motions were the equivalent of a motion for judgment of acquittal. Although the defendant contended that the belated motion to strike should suffice as a timely motion, the Court held that since there was no objection to the introduction of the items in evidence at the time they were proffered, but only at the conclusion of the State's case and at the conclusion of the whole case, the defendant knowingly waived his right to question their admissibility on appeal. In Martelly v. State, 230 Md. 341, at page 348, 187 A.2d 105, at page 108 (1963) a motion before trial to suppress evidence was held to be, in effect, withdrawn by the defendant's trial counsel's express waiver of objection to the admissibility of the same evidence when offered at the trial, the Court stating:

'It is settled law that when an accused is present in court and represented by competent counsel, he is bound by the actions and concessions of counsel, and that even constitutional rights may be waived in the course of a trial.'

A waiver as to evidence illegally obtained operates with full effectiveness and results in the evidence admitted being given the same probative force as if it were competent. Martin v. State, 203 Md. 66, 98 A.2d 8 (1953). See Gault v. State, 231 Md. 78, 188 A.2d 539 (1963), in which it was held that where the record does not show any objection to the testimony, or any motion to strike, the matter of the admissibility of the testimony was not properly before the Court in appeal. The Court further said that a motion for a directed verdict at the close of the State's case could hardly be considered a motion to strike, and if so, it came too late. See also Banks v. State, 228 Md. 130, 179 A.2d 126 (1962). We find, therefore, that the appellants waived their right to object to the admission of the articles introduced in evidence, even assuming, arguendo, that they were seized as a result of an unreasonable search.

Like the cigarettes, the plywood section and the photographs of the truck, the admission was introduced in evidence without objection. The contention on appeal goes to the lack of the constitutionally required admonitions and not to the fact the admission, apart from this, was not voluntary. They was no allegation below nor on appeal that it was the product of force, violence, threats,...