Lett v. State

• Decision Date: 02 June 1982
• Docket Number: No. 1040,1040
• Citation: 445 A.2d 1050,51 Md.App. 668
• Parties: Richard G. LETT A/K/A Thomas Richard Lett v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 668

51 Md.App. 668

445 A.2d 1050

Richard G. LETT A/K/A Thomas Richard Lett v. STATE of Maryland.

No. 1040.

Court of Special Appeals of Maryland.

June 2, 1982.

Joseph H. Rouse, Assigned Public Defender, for appellant.

Michael A. Anselmi, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County, and Barry A. Hamilton, Asst. State's Atty. for Montgomery County, on the brief, for appellee.

Argued before WEANT and BISHOP, JJ., and JAMES S. GETTY, Specially Assigned Judge.

WEANT, Judge.

On 3 April 1980 Richard G. Lett, a/k/a Thomas Richard Lett, appellant, was indicted for first degree rape, second degree rape, first degree sexual offense, second degree sexual offense, and kidnapping. A jury found Lett guilty on all counts; the judge merged second degree rape into first degree rape, and second degree sexual offense into first degree sexual offense. On 15 May 1981 appellant was sentenced to life imprisonment for first degree rape, a concurrent life term for first degree sexual offense, and 25 years for kidnapping, this sentence to run consecutively with the life sentences. After his sentence was affirmed by a sentence review panel, a timely appeal to this Court was filed from the decision of the Circuit Court for Montgomery County.

Appellant presents seven prolix questions for us to consider. Seeking to be more laconic, we will attempt to unravel and clarify each point as we deal with it.

Appeal

I.

Lett first contends that the trial court abused its discretion by refusing to grant a continuance of his suppression hearing. He alleges that he was constrained to request a continuance when the state failed to produce as witnesses at that hearing all four New Jersey police officers who participated in the appellant's arrest and subsequent search of his motel room and vehicle. Instead the prosecutor produced only three of the four.

The decision as to whether or not to grant a continuance is within the sound discretion of the trial court and will only be reversed on appeal if there is an abuse of that discretion. The Court of Appeals has outlined the criteria to be used in determining this issue as follows:

To show such an abuse of discretion and prejudice for failure to continue a case because of the absence of witnesses, the party requesting the continuance should show: that he had a reasonable expectation of securing the evidence of the absent witness or witnesses within some reasonable time; that the evidence was competent and material, and he believed that the case could not be fairly tried without it; and that he had made diligent and proper efforts to secure the evidence. [Citations omitted.]

Jackson v. State, 214 Md. 454, 459, 135 A.2d 638, 640 (1957), cert. denied, 356 U.S. 940, 78 S.Ct. 784, 2 L.Ed.2d 816 (1958).

First, the record fails to reveal whether the appellant had a reasonable expectation of securing the presence of Lt. Calabrese, the missing officer, within a reasonable time. There is no indication of why he failed to appear or when he could be expected to be present as a witness. See Taylor v. State, 226 Md. 561, 565, 174 A.2d 573, 575 (1961).

Second, the only effort made by Lett to show that the officer's expected testimony was competent and material and that the case could not be fairly tried without it was through a proffer that Lt. Calabrese would testify to the fact that he authorized entry into the motel room and that he was present during the search of the automobile. We think that this proffer does not establish that the Lieutenant's testimony would be necessary to assure a fair trial for the appellant. There were two other police officers who did testify and who were able to say that Calabrese authorized the entrance into the motel room as they were present at the time. Likewise there was another officer at the hearing who saw Lt. Calabrese make the search of the vehicle. Consequently the proffered testimony would have been merely cumulative.

Third, the record does not reveal any attempt which the appellant made toward securing Lt. Calabrese as a witness other than to say that "we requested them to produce four and through an oversight only produced three." Jackson v. State, 288 Md. 191, 194, 416 A.2d 278, 281 (1980). The record does not disclose who was responsible for the oversight, i.e., the state or the defense. In fact, defense counsel concedes that he had not interviewed the missing witness which procedure, in our view, would be a vital step toward making a diligent and proper effort to secure that evidence.

Finally, we note that the fact that all of the police officers involved were from New Jersey is another cogent factor in a continuance. The trial judge properly voiced concern over the expense and inconvenience that would be involved in bringing the police officers to Maryland a second time. Under all the circumstances of the instant case, we fail to perceive any abuse of discretion on the trial court's part in refusing to grant a continuance.

II.

Lett's second contention is that his arrest without a warrant was illegal, unreasonable, and a violation of his Fourth Amendment rights. Appellant relies on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); this reliance, however, is misplaced. In Payton, the Supreme Court held that a warrantless arrest could not be effectuated in one's home, even upon a showing of probable cause, absent either consent or exigent circumstances. In the instant case, however, there were both consent and exigent circumstances.

In our view the trial judge correctly disposed of this proposition in his Memorandum and Order dated 12 December 1980. We quote therefrom:

The law of the place of the arrest governs in determining the legality of an arrest, Hager v. State, 27 Md.App. 475 (1975). Therefore, New Jersey law would govern the resolution of these issues here. Under New Jersey law in a proper situation both consent of a qualified person with control over the premises entered, State v. Miller, 157 N.J.Super. 552, 388 A.2d 993 (1978), and exigent circumstances, State v. Galvin, 161 N.J.Super. 524, 391 A.2d 1275 (1978), are exceptions to the rule that warrantless searches and seizures are per se unreasonable. Mrs. Helman [the victim], by implication if not in express language, consented to the entry by the police of her motel room. While the record is unclear whether Mr. Lett's name or her name, or both, appeared on the motel registry, or whether he registered using her husband's name, it is clear that she had perfect right to consent to the police entering the room. Once lawfully in the room, the officers had ample probable cause on the basis of Mrs. Helman's statements to arrest the Defendant.

Even assuming arguendo that there was no consent, the police were clearly justified in entering the motel room on the basis of exigent circumstances. The police responded to the victim's call by coming to the motel. There the victim told them that Lett had abducted her, that she believed he had a weapon, and that she thought he was wanted for armed robbery in either Florida or Maryland. Obviously, the police were fully justified in acting quickly to apprehend appellant without a warrant to prevent his escape.

Thus, appellant's warrantless arrest by the police was not illegal, unreasonable, or a violation of his Fourth Amendment rights, whether the arrest was based on consent or exigent circumstances.

III.

Appellant next contends that the trial judge erred in admitting the evidence seized in the appellant's room during the warrantless search. The trial judge ruled that the items seized were in plain view as the police officers entered the motel room and that thus they were admissible as evidence. Again we agree with the trial court.

Relying on Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Court of Appeals has enunciated the requirements for the applicability of the "plain view" exceptions to the exclusionary rule: evidence in plain view may be seized if "(1) the police have a prior justification for the intrusion; (2) they find the evidence in plain view; (3) they find it inadvertently; and (4) it is 'immediately apparent to the police that they have evidence before them,' ...." State v. Wilson, 279 Md. 189, 195, 367 A.2d 1223, 1227 (1977). See also State v. Boone, 284 Md. 1, 10, 393 A.2d 1361, 1366 (1978). In the instant case, the police had justification for the intrusion because allegedly Mrs. Helman, the victim, had been abducted and raped by appellant. Each of the items seized--the car keys, roll of adhesive tape, and women's shoes--were in plain view of the police and inadvertently found by them when they entered the motel room to arrest appellant. Finally, it was clear to the police that they saw evidence of the crime because the victim had told them that she had been bound with tape and transported to New Jersey in the trunk of a car. As the victim was shoeless when the officers first talked to her, they could easily have concluded that the pair of women's shoes had been worn by her. Thus the plain view exception is satisfied.

IV.

Appellant's fourth contention is that the trial judge erred in determining that the initial illegal warrantless search of his vehicle did not taint the subsequent search of the same vehicle pursuant to a valid search warrant. He alleges that the evidence seized pursuant to the valid search was not purged of the primary defect caused by the illegality of the original search. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We disagree.

This Court has explained that there are three generally recognized exceptions to the "fruit of the poisonous tree" doctrine: "1) where the evidence sought to be introduced has an independent source, or 2) the evidence would have inevitably been discovered, or 3) where 'the connection between the lawless conduct of the...