Logan v. State

• Decision Date: 13 February 1980
• Docket Number: No. 678,678
• Citation: 410 A.2d 1110,45 Md.App. 14
• Parties: Theodore Russell LOGAN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 14

45 Md.App. 14

410 A.2d 1110

Theodore Russell LOGAN v. STATE of Maryland.

No. 678.

Court of Special Appeals of Maryland.

Feb. 13, 1980.

Michael R. Malloy, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Michael A. Anselmi, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and William T. Shockley, Asst. State's Atty. for Prince George's County on the brief, for appellee.

Argued before THOMPSON, COUCH and MacDANIEL, JJ.

COUCH, Judge.

The appellant, Theodore Russell Logan, was charged with daytime housebreaking and larceny and was found guilty of these charges by a jury in the Circuit Court for Prince George's County. He was sentenced to eight years incarceration for the housebreaking conviction and a consecutive eighteen months sentence on the larceny conviction. By this appeal appellant presents three questions as follows:

"1. Did the trial court err by admitting a self-incriminating statement obtained from Appellant in violation of Maryland District Rule 723?

2. Did the trial court err by denying Appellant's motion for a mistrial?

3. Did the trial court err, at sentencing, by considering allegations of other crimes committed by Appellant, which evidence resulted from illegal activities by police?"

In view of the particular issues raised here, only a brief resume of the factual background is necessary. Pertinent facts will be supplied in our discussion of each issue.

Two residents of an apartment in Adelphi, Maryland left it on November 15, 1978 after double locking the front door and the patio sliding glass door. Upon their return they discovered that one of the front door locks was unlocked and the door closed; the patio door was still secured. An inspection of the apartment revealed a television set and a stereo set had been removed.

A warrant for appellant's arrest was obtained by the police after a witness stated he had seen appellant leaving the apartment house around the time the theft must have occurred, and a juvenile, who had been arrested for the same offense, stated that appellant was involved. Appellant, upon learning of the warrant, surrendered himself to the police. Appellant's admissions to the police following his arrest, one event at trial, and a complaint about sentencing form the basis for this appeal.

(1)

The Maryland District Rules (723 a) ¹ provide:

"a. After Arrest.

A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than the earlier of (1) 24 hours after arrest or (2) the first session of court after the defendant's arrest upon a warrant or, where an arrest has been made without a warrant, the first session of court after the charging document is filed. A charging document shall be filed promptly after arrest if not already filed."

Appellant claims this rule was violated because he was not taken before a judicial officer for some eight hours after his arrest and thus the court erred in not suppressing an inculpatory statement he gave to the police during this "delay". The appellee argues, and we agree, that regardless of any error that might otherwise have been present in this regard, appellant cannot complain because he voluntarily waived his 723 a right to a prompt presentment before a judicial officer.

The record amply demonstrates that in conjunction with appellant's waiver, in writing, of his several Miranda ² rights, he affirmatively waived his 723 a right. Immediately following appellant's arrest he was read a "Waiver of Rights Form" which included a waiver of each right under M.D.R. 723 a. He initialed the particular section pertaining to the waiver of prompt presentment and answered "yes", in writing, on the line after the following question, "Do you waive your right to an immediate initial appearance and agree to delay the appearance until the completion of this interview?" He also indicated that he understood the rights which were explained to him. It is therefore apparent that the appellant knowingly and intelligently waived his right to a prompt presentment under M.D.R. 723 a and may not now complain of a loss of that right. See Johnson v. State, 282 Md. 314, 332, 384 A.2d 709 (1978); State v. McKay, 280 Md. 558, 572-74, 375 A.2d 228 (1977).

(2)

The question of whether the trial court erred by denying appellant's motion for a mistrial arose because the trial judge agreed to allow the jury to determine if there had been compliance with M.D.R. 723 a. ³ Appellee, having been told the jury would be allowed to determine whether M.D.R. 723 a had been violated, desired to produce testimony to explain the delay in presenting appellant to a judicial officer. Appellee was allowed, over objection, to show that the investigating officers were investigating some sixty breaking and entering cases and asked appellant about his possible involvement. There was no testimony given with reference to any other offenses, only the bald statement that appellant was questioned about his possible involvement. The record reveals that on each occasion when a reference was made to the other breaking and entering investigations, the trial judge explained to the jury his reason for allowing this testimony, I. e., for the limited purpose of explaining the time delay in presenting appellant to a judicial officer, and cautioned them not to consider any other possible offenses in determining appellant's guilt or innocence of the breaking and entering for which he was being tried. These admonitions were restated in the trial judge's instructions. We are persuaded that if there was error, it was harmless beyond a reasonable doubt. See Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665 (1976).

(3)

Appellant finally argues that the trial judge erred when, at the sentencing of appellant, he considered information supplied by appellee that appellant had confessed to other housebreakings after his arrest. He argues that these confessions were the result of an illegal search and thus were tainted since they were the fruit of a poisonous tree and therefore subject to the exclusionary rule. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Appellee concedes that the confessions were tainted and thus could not have been used at trial, but argues that this does not prevent their use at sentencing.

It appears that this precise question has never been considered by an appellate court in Maryland, although...