Gilmore v. State

• Decision Date: 09 November 1971
• Docket Number: No. 26,26
• Citation: 283 A.2d 371,263 Md. 268
• Parties: Ike GILMORE v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 268

263 Md. 268

283 A.2d 371

Ike GILMORE v. STATE of Maryland.

No. 26.

Court of Appeals of Maryland.

Nov. 9, 1971.

[283 A.2d 372] Jerome A. Dashner, Baltimore, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty. and Arrie W. Davis, Asst. State's Atty., Baltimore, for Baltimore City on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

SMITH, Judge.

We shall here affirm convictions of murder in the first degree and robbery. The death sentence was imposed on the murder charge which brought the appeal to this Court. The sentence for robbery was 10 years to be served consecutively to the murder sentence. The trial judge said:

'This may seem to be an incongruity and a contradiction in and of itself, but the Court is directing that the sentence on the robbery indictment be served consecutively in the event that the death penalty imposed under Indictment No. 2789 should hereafter be commuted to life imprisonment.'

No undue dispatch can be seen in the case, but the dispatch with which it has moved stands as a mark that the Maryland court system moves faster than some other court systems in the country. The crime in question took place on May 20, 1970. Appellant Ike Gilmore (Gilmore) Gilmore presents 10 questions to us. They are:

                was indicted on June 4, 1970, and arraigned on June 12.  Trial began before Judge O'Donnell without a jury on October 30 and continued through November 10 when a guilty verdict was rendered.  Motion for new trial was filed on November 12 and denied on December 8.  Sentence was imposed on March 4, 1971, after the filing of medical and probation reports.  An appeal was entered to this Court on March 8, 1971.  The record reached here on March 24 for our September Term, 1971.  1  The cause was argued on October 12
                

'1. Was the warrantless arrest of the appellant executed without 'probable cause' in violation of the fourth Amendment to the Constitution of the United States?

'2. Was the appellant's conviction based in part upon the use by appellee of illegally seized evidence?

'3. Did the trial court erroneously overrule appellant's objections to the admissibility of an incriminating statement?

'4. Did the trial court improperly consider prejudicial testimony and evidence illegally seized by the police in a warrantless search of a bus station locker?

'5. Did the trial court err in denying appellant's motion for judgment of acquittal?

'6. Did the trial court abuse its discretion in allowing the appellee to reopen its case-in-chief, for the purpose of permitting the introduction of incriminating evidence by the appellee?

'7. Did the trial court abuse its discretion by assisting the appellee in the tactical presentation of evidence thereby denying appellant due process of law?

'8. Was the appellant denied due process of law as a result of appellee's disorganized, uncoordinated and disjoined (sic) manner of presentation of evidence in the case-in-chief, thereby rendering impossible a systematic appellate review of the trial record?

'9. Did the trial court convict appellant on the basis of insufficient circumstantial evidence?

'10. Is the penalty of death imposed upon appellant in violation of the eighth and fourteenth amendments to the U. S. Constitution?'

Emma Burdette testified that on May 20, 1970, she resided in an apartment at 3201 North Calvert Street in Baltimore. A magazine salesman knocked at her door at about 10:30 that morning. She did not admit him. She could not identify the salesman other than by race. Gilmore is of that race. She observed the salesman knocking on the doors of other apartments.

Mrs. Burdette went to the first floor apartment of her best friend, Mae Wood, at about 2:30 p. m. on the same day. She found that Mrs. Wood had been beaten. The apartment had been ransacked. Mrs. Burdette, a nurse, was unable to find a pulse or respiration.

The autopsy report showed Mrs. Wood to have been violently and savagely beaten. She sustained broken cheek bones, a broken jaw, and a fractured skull. The thyroid bone in her neck apparently was fractured by strangulation. Virtually every rib in her body was broken as a result of some compression-type being applied to it. The medical examiner classified all of the injuries as blunt force injuries. The trial judge said of the injuries in his oral opinion:

'The evidence offered in this case concerning the manner and means of the decedent's death are the most extensive and vicious that this Court has ever had brought to its attention as either, in its earlier days as a prosecutor, in its Mary Nolen and Richard Best, co-workers of Gilmore, and George Clotfelter, manager of the magazine company crew of which Gilmore was a member, all testified to seeing Gilmore in the bar of the hotel at which they were staying in Baltimore on the evening of May 20. His knuckles were bruised. He said that he had been in a fight. He exhibited to them five rings. Two of the rings later were positively identified as having been owned by the victim. A third ring, removed from Gilmore at the time of his arrest and described as being a wedding band, was identified by these three individuals as being one of the five rings so exhibited. He offered to sell the rings. Mary Nolen bought one. Another of the five rings was described as having a gold crest or coat of arms on it.

later days as a defense counsel in criminal cases, or since I have been a member of this Bench.'

Clotfelter described the conditions under which he fired Gilmore (and then subsequently rehired him) on May 20. When Clotfelter extended his hand to shake hands with Gilmore he said Gilmore 'kneeled', explaining '(h)e went to his knee.' Gilmore explained his actions to Clotfelter by saying that he had been in a fight in the territory in which he was selling magazines. Gilmore's right hand was described as swollen, sore, and skinned.

William Brown said a person he identified as Gilmore approached him at the corner of St. Paul and 31st Streets on May 21 and attempted to sell him magazines. Credentials exhibited at that time showed the name 'Ike Gilmore'. The person who approached Brown said he was from Alabama, as is Gilmore. Brown left the corner but later met Gilmore at 29th and St. Paul Streets where Gilmore said he had missed his ride. At that time he displayed a ring and gave it to Brown, stating that it had brought him good luck. This ring is described as a gold crest or coat of arms ring. It was one of the rings identified Detective Wagner of the homicide squad interviewed Brown and received the gold crest ring from him. The victim's relatives identified it to him as the property of the victim. He ascertained that a magazine group had checked out of a Baltimore hotel on May 24 and had gone to York, Pennsylvania. Miss Nolen turned over to Detective Wagner a ring which she said she bought from Gilmore. The victim's relatives then identified that ring to Wagner as the property of the victim. This identification was made on the evening of May 27. Later that same evening Gilmore was apprehended by three Baltimore police officers in company with Best, one of his former fellow employees. The arrest took place on Howard Street in Baltimore near the Greyhound terminal.

by Nolen, Best, and Clotfelter as having been in the possession of Gilmore the previous evening. While Gilmore and Brown were talking a white van passed by. Gilmore stated that it was his 'bus' with part of his crew. Brown's description of the van corresponded with the description of the vehicle used by the magazine group as described by them. Brown called the police and turned the ring over to them.

The arrest was without a warrant. Wagner was not present when the arrest was made. Sgt. Dungan, one of the arresting officers, did testify that he went to York, Pennsylvania, in connection with the investigation and that he was present when the ring was recovered from Miss Nolen. He was not present when it was identified. He was present when Miss Nolen said she obtained the ring from Gilmore.

Gilmore was interrogated subsequent to his apprehension. As he put it in the statement of facts in his brief:

'(Sgt.) Dungan testified from the notes that he took while Gilmore was being questioned which basically revealed that Gilmore admitted being in the home. He was shown photographs and he admitted having talked with persons in the apartment house and that one woman had Detective Powell testified that the police recovered 'a small, plain gold wedding band from Mr. Gilmore's left small finger' and '(a) pair of brown, possibly tan, boottype shoes, with straps and buckles', which he was wearing. The boots were blood stained. Powell at that time observed 'an unusual amount of swelling to (Gilmore's) right hand, and, also, what appeared to be a small cut or laceration near the knuckle above the smallest finger of his right hand.'

opened the door just a little and that he was offered one dollar by one woman but he refused to take it. He admitted he sat on the couch shown on the photographs and that Mrs. Wood was wearing a green dress. He explained the rings by stating that he met a girl on the street and she gave him the rings and transistor radio and later they were stolen from his room at the Roundtowner Hotel. He purchased the ring with the coat of arms from a hippie.'

PROBABLE CAUSE FOR ARREST

The law on this subject was summed up by Judge Horney for the Court in Mulcahy v. State, 221 Md. 413, 158 A.2d 80 (1960):

'Article 26 of the Maryland Declaration of Rights prohibits the search of suspected places and the seizure of persons or property without a warrant, but this provision of the constitution does not prohibit arrest without a warrant when it is lawful and in cases where the public security demands it. In this State it has long been settled that a peace officer may arrest without a warrant,...