Kleinbart v. State

• Decision Date: 16 October 1967
• Docket Number: No. 243,243
• Citation: 234 A.2d 288,2 Md.App. 183
• Parties: Michael Neal KLEINBART and Hazel Elizabeth Mullin v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 183

2 Md.App. 183

234 A.2d 288

Michael Neal KLEINBART and Hazel Elizabeth Mullin v. STATE of Maryland.

No. 243.

Court of Special Appeals of Maryland.

Oct. 16, 1967.

Frank B. Haskell, III, Upper Marlboro, for appellant kleinbart.

Fred W. Rickerson, Lanham, for appellant Mullin.

Dickee M. Howard, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty., and Edward P. Camus, Ast. State's Atty., for Prince George's County, Upper Marlboro, on the brief), for appellee.

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

WILLIAM J. O'DONNELL, Special Judge.

Appellants, Hazel Elizabeth Mullin and Michael Neal Kleinbart (also known as Albert Feldman) were charged in a three (3) count Indictment returned by the Grand Jury for Prince George's County with breaking and entering, on May 25, 1966, the dwelling house of Gerald Matthew LeCompte and Reba Veronica Wilson, with grand larceny of their personal property and with receiving stolen goods.

After a non-jury trial on August 11, 1966, presided over by Judge Samuel W. H. Meloy, they were each found guilty of grand larceny and not guilty of receiving stolen goods. It does not appear from the record that the trial judge made any findings on the first count in the Indictment.

From the judgments imposed-five (5) years imprisonment as to Kleinbart and three (3) years imprisonment as to Mullin-they appeal, each contending that they were subjected to unlawful searches and seizures of the automobile in which they were riding at the time of their arrest and that the evidence offered against them was not sufficient to sustain their convictions. Appellant Mullin further contends that her oral statement offered in evidence against her was inadmissible.

(a) Searches and Seizures

At about 2:30 p. m. on May 25, 1966, Trooper Blazejak of the Maryland State Police was attracted to most erratic driving by Appellant Mullin, operating a 1960 white Ford Falcon sedan with Maryland registration; as she proceeded onto Route #5 from the parking lot at the Marlow Heights Shopping Center, she almost struck the curbing on the traffic island in the highway, swerved across the fast-lane of traffic, cutting off several cars which were required to stop suddenly and as she approached the red traffic signal at Colebrook Drive, the brakes were so suddenly applied that her passenger, Kleinbart, was caused to be thrown against the dash.

The Trooper directed her, when the traffic signal changed, to pull onto the median strip. She there identified herself by a driver's license and registration card in the name of Dolores Marie Evans Smallwood (later ascertained to be her sister) of Landover, Maryland. She appeared to the Trooper to be 'under the influence' and although she stated to him that she had had 'only one beer,' in view of her driving and her appearance, he decided to charge her with a violation of Art. 66 1/2, Sec. 206 (Ann.Code, 1967 Repl. Vol.)-a misdemeanor. He crossed Route #5 to phone the State Police Post in Marlboro for assistance and while in the phone booth noticed that Kleinbart, who had been 'passed out' on the front seat of the car, was then staggering and meandering across the traffic lanes of the busy highway to a parking lot on its opposite side. Since Kleinbart appeared to the Trooper to be drunk, he was arrested for 'public drunkenness' a misdemeanor in violation of Art. 27, Sec. 123 (Ann.Code, 1967 Repl. Vol.).

When the Ford was stopped in the median strip and as Mrs. Mullin began to alight, 'a container of pills' was noticed on the front seat. When Mrs. Mullin said they were hers, the Trooper returned them to her. While talking to Mrs. Mullin, Trooper Blazejak noticed a number of articles of clothing apparently thrown on the rear seat of the car, but made no inspection of them and at the time of trial, could not describe them.

In response to his call, Troopers Arnold and Riffee, within about 5 minutes, arrived at the scene; Appellants were transported to the State Police Post by Trooper Arnold and the Ford sedan, and all its contents, was towed within a 15 or 20 minutes interval to Cole's Amoco Station, located at the intersection of Routes #5 and #414, after a tow-truck had been dispatched to the scene upon the request of Trooper Arnold.

At the Police Post, about one hour after her arrest, Appellant Mullin was charged-in her sister's name-with operating a motor vehicle under the influence of narcotics (Art. 66 1/2, Sec. 206, supra) and was charged-in her correct name-apparently on the next day, with reckless driving, Art. 66 1/2, Sec. 209 (Ann.Code, 1967 Repl. Vol.). When at the Police Post, it was ascertained that Kleinbart was not under intoxication of alcoholic origin, but apparently of narcotics, he was sent to the Prince George's Hospital by ambulance. After issuing the traffic summons on May 25th, Trooper Blazejak withdrew from the case (except to issue the summons for reckless driving on May 26th) and turned the case over to Corporal Ansell of the Criminal Investigation Division.

Trooper Arnold testified that he summoned the two-truck in order 'to store the vehicle, because we were responsible for the car;' that Appellant Mullin was charged with operating under the influence of narcotics after a negative breathalyzer test (Art. 35, Sec. 100, Ann.Code, 1965 Repl. Vol.), which she voluntarily took and after she admitted taking a named narcotic. He described Kleinbart, when they arrived at the Post, as being 'passed out,' that his legs were jumping up and down and with his eyes closed, his head was bobbing back and forth. He carried a Selective Service card issued in the name of Albert Feldman.

At about 2:20 p. m. the same afternoon, Trooper Arnold had noticed Kleinbart in the vicinity of Hillcrest Heights Apartments, to which the Trooper had been dispatched to answer a domestic complaint, when he saw Kleinbart walk past him in an alley toward the Apartments.

Shortly after 4:00 p. m. (approximately one and one-half hours after the arrests) Trooper Arnold went to the service station to which the car had been towed and 'to protect the property' removed from it clothing which was piled on the back seat, 'check books from up front' and from the trunk, 'jewelry, watches and film,' apparently in suitcases. He testified he removed the property in order that it could be stored at State Police Barracks 'H'. After having locked the car at the service station, he turned over to Corporal Ansell its keys, as well as all the property, so that it could be inventoried. Over objections by both Appellants, Trooper Arnold described the property he removed as: 'Suitcases, clothing; a wig, jewelry, watches, earrings, cuff-links, tie clasps, and film (in one of the suitcases); and check books in a broken paper bag.' He testified that as he removed the property from the car, he then suspected that some sort of crime had been committed, 'suspected that the articles may have been stolen,' since he noticed a different name than the defendant's on a man's engraved watch removed from the vehicle. At the Marlboro Post, at about 4:30 p. m., he marked with his initials for identification purposes, the watch, which he had recovered from the trunk. He further identified, over objections by both Appellants, a suitcase and its contents, a transistor radio, cuff links, a camera and checkbooks.

Trooper Riffee, also attached to the Criminal Investigation Division, testified that on Corporal Ansell's directions he went to the Prince George's Hospital to get Kleinbart to voluntarily return to the Police Post; that at that time he had no knowledge that any crime had been committed, that Kleinbart was not placed under arrest and did agree voluntarily to return to Marlboro with him. He identified at the trial a sport coat as 'resembling the one' Kleinbart carried with him after his release from the hospital and which he was wearing at the Police Post.

Corporal Ansell, after having received a large quantity of personal property from Trooper Arnold, directed Trooper Riffee to ask Kleinbart to return to the Police Post in order 'to get the property squared away, since a name on some of the property differed from that on the driver's license,' and stated it was necessary to list the property and to learn the identity of the owner. When he first saw Kleinbart at about 8:30 p. m., he told the Corporal that he knew nothing about the property and that it was not, to his knowledge, stolen. Corporal Ansell acknowledged that since there was not report at that time of any of the property having been stolen, Kleinbart was not charged nor was he suspected of any crime; he made several telephone calls to persons whose names appeared on some of the property and spoke to Gerald Matthew LeCompte (who lived in Hillcrest Heights and who returned to his apartment about 7:00 p. m. to discover his apartment had been broken into and ransacked, and that his clothing and jewelry, as well as the clothing and jewelry of Miss Wilson, had been stolen). LeCompte was requested to come to the Marlboro Post and upon his arrival, between 9:15 and 9:30 p. m., Corporal Ansell drove to Cole's Amoco Station to which the Ford had been towed. It was there parked in full view, within 40 feet to 50 feet from the front door and brightly lighted. On this trip, the Corporal unlocked the car and the trunk and removed still additional property-a tape recorder from the trunk and six (6) cancelled checks 'from up front'. He explained the purpose of this entry into the car by stating that Trooper Arnold had not removed all the property which was in the car, that he decided 'to go back up and get (the remaining property)' and 'finish cleaning out' the car in LeCompte's presence in order to see if any of it belonged to LeCompte.

Corporal Ansell further testified that at the Police Post both LeCompte and Kleinbart stated that they had never seen each other...