Martelly v. State

• Decision Date: 10 January 1963
• Docket Number: No. 91,91
• Citation: 187 A.2d 105,230 Md. 341
• Parties: Louis J. MARTELLY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 341

230 Md. 341

187 A.2d 105

Louis J. MARTELLY v. STATE of Maryland.

No. 91.

Court of Appeals of Maryland.

Jan. 10, 1963.

Jean F. Dwyer, Washington, D. C. (Alden W. Hoage, Bethesda, Md., on the brief), for appellant.

Russell R. Reno, Jr., Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, Leonard T. Kardy, State's Atty., and Alfred Burka, Asst. State's Atty., for Montgomery County, Rockville, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, HORNEY, and SYBERT, JJ.

SYBERT, Judge.

Appellant, Louis J. Martelly, was sentenced to imprisonment after being convicted by a jury in the Circuit Court for Montgomery County under an indictment charging him with having possessed and had under his control a narcotic drug. On this appeal he contends that the trial court was in error in denying his motion to suppress certain evidence on the ground that it was produced by an unlawful search and seizure, and that in any event the trial court should have granted his motion for a judgment of acquittal because, he says, the evidence was insufficient to support the jury's verdict of guilty.

The evidence is substantially undisputed. On April 7, 1961, several police officers entered appellant's barber shop and placed him under arrest. They had in their possession a warrant for his arrest, issued on the preceding day, charging him with a petit larceny committed in a department store some weeks earlier. After advising appellant that he was under arrest, one of the officers, following what he said was normal procedure upon an arrest, searched appellant's person for weapons, and removed from his shirt pocket a plastic bottle containing 22 tablets which appellant admitted were dolophine, a narcotic drug. There were two prescription labels, from different drug stores, pasted on the bottle. Upon being informed by one of the officers that he was known to be a user of narcotics as the result of an extensive surveillance of his shop, appellant went to the rear of the shop, removed a box containing a syringe and a hypodermic needle from behind the toilet, and handed it to the officers. A further search by the officers, made with appellant's consent, produced another hypodermic needle and an eyedropper from the top of a mirror and a number of empty bottles bearing dolophine prescription labels from behind the mirror. The officers had no search warrant.

Prior to trial of the case appellant filed a motion pursuant to Maryland Rule 725 to suppress the evidence taken from his person and shop at the time of his arrest, which was denied. At the trial, however, the same evidence was admitted under the following circumstances. When the Assistant State's Attorney offered in evidence the plastic bottle taken from appellant's person, the hypodermic needle and syringe, and the envelope containing these items, appellant's counsel (who is not counsel on this appeal) said, 'No objection'. Thereupon, the narcotic tablets which had been contained within the plastic bottle, and the eyedropper with hypodermic needle, were offered in evidence without objection. Later, the two prescriptions corresponding to the two labels on the plastic bottle were offered, and defense counsel again said, 'No objection'. Finally, when the empty prescription bottles removed from behind the mirror in the barber shop were offered in evidence, the court asked defense counsel whether he had any objection, to which the latter replied, 'No objection, Your Honor'.

In addition to the items thus admitted into evidence, the State produced a chemist who testified that his analysis showed that the contents of the bottle found in appellant's shirt pocket were tablets each containing seven and one-half milligrams of dolophine, although the two labels on the bottle and the underlying prescriptions each called for dolophine tablets of ten milligram strength. The druggists who filled the prescriptions were not called. Although appellant did not take the stand, he introduced a deposition given by his physician in the presence of the State's Attorney and defense counsel in which the physician stated that he had treated appellant for a kidney infection for more than a year and had given him prescriptions for dolophine at the rate of approximately one prescription per week, but that the last was written for appellant in March, 1961, although the specific day was not mentioned.

In the motion to suppress evidence appellant claimed that the evidence was the fruit of an unlawful search and seizure because it was not obtained under a search warrant or as incident to a lawful arrest, and hence was inadmissible. He makes the same contention on this appeal. The fact that the police officers had no search warrant is not disputed. As to the arrest, appellant asserts its illegality (and consequent ineffectiveness to support the search and seizure) on the ground that the arrest warrant, charging him with the theft of an item from a department store, was merely a colorable device by which the police sought to gain entry to his premises and make a search in an effort to obtain evidence with which they could charge him with a violation of the narcotics law. This claim is based on the fact that the police admitted that appellant had been under observation for more than a month as a suspected violator of the narcotics law, and yet no search warrant had been issued. In addition, appellant claims that the item which he is alleged to have stolen had already been recovered from another person. (It may be noted, however, that the affidavit made by the department store representative in applying for the arrest warrant against appellant identified the latter as a person who was accompanying the alleged shoplifter at the time of the alleged theft.) Appellant cites Riley v. State, 179 Md. 304, 18 A.2d 583 (1941), for the proposition that 'a search made solely to adduce evidence with which to charge a defendant cannot be upheld', and several United States Supreme Court cases, such as United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932), which hold that under arrest warrants exploratory and general searches are unlawful.

The State maintains, on the other hand, that the arrest warrant was bona fide and valid; that the seizure of the bottle of dolophine tablets from appellant's shirt pocket was incident to a lawful arrest, so that no search warrant was required for that item; and that the other items placed in evidence were not taken as the result of a search and seizure because they were obtained with the express consent of appellant. The principal contention of the State, however, is that the admissibility of the disputed evidence is not properly before this Court, not only because appellant failed to object to its admission at the trial, but, more importantly, because he stated affirmatively that he did not object. This definite acquiescence to the admission of the evidence, the State says, operated as a waiver which precludes raising the point on this appeal.

We think the State's position as to waiver is sound. This is not a case where an accused simply failed to object to allegedly inadmissible evidence, but is one where counsel for the accused specifically stated, repeatedly, that he had no objection to its introduction. At the trial, the defense was predicated upon the theory that the narcotic drug had been prescribed by a doctor and that the accused was in possession of it lawfully, and apparently for that reason defense counsel assented to the introduction of the now disputed evidence. This, plainly, was a trial tactic which we will not review. Woodell v. State, 223 Md. 89, 162 A.2d 468 (1960). As was said in Madison v. State, 200 Md. 1, 8-9, 87 A.2d 593 (1952), where as a matter of trial tactics certain objections were not made during the trial, this Court is 'without authority to review errors in trial tactics of defense counsel or to speculate as to possibilities that different tactics might have produced a different result.'

At argument before use appellant maintained that the motion which he filed to suppress the evidence before trial of itself preserved the issue of the admissibility of the evidence at the subsequent trial and on this appeal. Apparently the theory is that under Maryland Rule 725 b the motion raised a defense capable of determination before trial (see Rizzo v. State, 201 Md. 206, 93 A.2d 280 (1952), involving a motion for return of seized articles, and J. & H. Stables, Inc. v. Robinson, 221 Md. 365, 157 A.2d 451 (1960), dealing with a motion to quash a writ of summons), and that therefore the order of the lower court denying...