McLaurin v. State
| Decision Date | 06 May 1976 |
| Docket Number | No. 686,686 |
| Citation | 356 A.2d 563,31 Md.App. 375 |
| Parties | John Anthony McLAURIN v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Charles W. Turnbaugh, Assigned Public Defender, for appellant.
Bernard A. Raum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Sandra A. O'Connor, State's Atty., for Baltimore County and Steven D. Silverman, Asst. State's Atty., for Baltimore County on the brief, for appellee.
Argued before ORTH, C. J., and GILBERT and MELVIN, JJ.
On April 1, 1975, the defendant, John Anthony McLaurin, was brought to trial in the Circuit Court for Baltimore County (MacDaniel J., presiding) on six separate indictments, alleging his complicity in the theft of five automobiles and their contents and the hubcaps of a sixth automobile. He elected a jury trial. The jury found him guilty of the following:
1. Count II of Indictment No. 50585, larceny of a white 1972 Lincoln Continental automobile on 11 November 1974 belonging to Eileen Colvin.
2. Count I of Indictment No. 50586, larceny of 4 automobile hubcaps of a value more than $100 on 11 December 1974 belonging to Elizabeth Eugenia Canavan and taken from her 1974 Thunderbird automobile.
3. Count II of Indictment No. 50587, receiving stolen property consisting of 3 rolls of pennies, Christmas cards and a toy, on 11 December 1974, of a value less than $100, taken from a 1970 Ford automobile belonging to Maude Edna Neilson.
4. Count I Indictment No. 50588, larceny of a 1972 one-half ton Ford van and its contents on 8 November 1974, belonging to Michael Mierzwinski.
5. Count I of Indictment No. 50590, larceny of a green 1972 Lincoln Continental automobile and its contents on 11 November 1974, belonging to James Henry Farrell.
6. Court II of Indictment No. 50602, receiving stolen property, consisting of a knife and hatchet in a leather case, a plastic tool case, and a jack and handle of a value less than $100, on 11 December 1974, taken from a 1969 Ford van belonging to John Robert Meadowcroft.
Appellant received sentences of ten years on each of the four larceny convictions, and three years on each of the receiving convictions. All the sentences were to be served concurrently except the three year sentence for the receiving conviction in Indictment No. 50587, which was to be served consecutively to the 'ten years sentence, in the first indictment (No. 50585)'. Appellant has taken this appeal from all the convictions and presents four questions:
I. Was the appellant denied due process of law and the right to call witnesses on his own behalf?
II. Did the trial judge improperly and prejudicially admit into evidence, over the strenuous objection of trial defense counsel as stipulated, facts and testimony to which the appellant never agreed?
III. Was the evidence sufficient to allow the jury to infer the appellant exercised possession or control over the stolen property found in the car in which he was a passenger?
IV. Was the evidence sufficient for conviction of larceny of either the Colvin car (Indictment No. 50585) or the Farrell car (Indictment No. 50590)?
We discuss the questions and the pertinent facts with respect thereto in the order presented.
Due process
Before the trial began, appellant moved to suppress as evidence articles found by the police in a search of an automobile on 11 December 1974, in which at that time appellant was a passenger. A suppression hearing was held out of the presence of the jury. The motion was denied. During the trial the critical articles found in the car were admitted in evidence without objection and appellant does not now contest the legality of the search or of his arrest. His contention here is that during the suppression hearing the trial judge deprived him of due process by denying him a postponement to secure the presence of a witness for whom he had issued a subpoena but who did not appear in response thereto. The witness, also a passenger in the car presumably would have testified to whether the trunk of the car was open or closed at the time of the search. As we believe that, under the circumstances revealed by the record, the search of the trunk was proper regardless of whether the trunk was open or closed, we hold that any error by the trial judge in not allowing a postponement was harmless beyond a reasonable doubt.
In Mobley and King v. State, 270 Md. 76, 310 A.2d 803 (1973), at 80-81, 310 A.2d at 806, the Court of Appeals in affirming this Court in Mobley and King v. State, 16 Md.App. 546, 298 A.2d 446 (1973), said:
'The Court of Special Appeals concluded that the only theory that could legitimate the warrantless search of the appellants' vehicle was the so-called 'automobile exception' to the search warrant requirement first established in 1925 by Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. Under that exception, a motor vehicle, unlike a home, may be searched without a warrant or previous arrest under appropriate circumstances when the officer has probable cause in the constitutional context to believe that the vehicle contains the fruits, instrumentalities, or other evidence of a crime. See, Dyke v. Taylor Implement Mfg. Co., Inc., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927). Since the rule is justified on the basis that an automobile is so readily movable as to make impracticable the obtaining of a search warrant, the existence of exigent circumstances must be shown in addition to probable cause to validate the warrantless search. Coolidge v. New Hampshire, supra; Chambers v. Maroney, supra. We recognized and applied the doctrine in Peal v. State, 232 Md. 329, 193 A.2d 53 (1963).
Probable cause to conduct a warrantless search of an automobile under Carroll and its progeny exists in the constitutional sense when the facts and circumstances within the officer's knowledge, and of which he had reasonably trustworthy information, are such as would warrant a man of reasonable caution in believing that the vehicle contained articles lawfully subject to seizure . . . To satisfy the probable cause requirement, therefore, an officer is not required to have actual knowledge that the vehicle contains fruits, instrumentalities, or other evidence of a crime at the time he undertakes his warrantless search. '. . . (o)nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause . . ..' Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 509, 21 L.Ed.2d 637 (1969). . . .'
Officer Ronald B. Schwartz of the Baltimore County Police Department testified at the suppression hearing that at about 9:30 P. M. on 11 December 1974, he 'responded' to the parking lot of E. J. Korvettes on East Joppa Road in the Parkville district of Baltimore County. His attention was drawn to two automobiles parked on the lot, a 1974 Ford Thunderbird and a 1972 green two-door Oldsmobile. The two cars were parked about fifteen feet apart. Two people were inside the Oldsmobile and as Officer Schwartz 'pulled up on the scene', a third person opened the driver's door and got in the back seat of the Oldsmobile. The appellant was in the front passenger seat.
Officer Schwartz noticed that the left rear of the Ford 'had been jacked up' and '(o)n the lefthand side the hubcaps had been removed and wheel lugs also removed on the tires'. The 'lug nuts' were 'scattered along the ground as you would take the lug nuts off and let them fall'. He approached the driver's side of the Oldsmobile and 'receive(d) identification from' two of the occupants. Without entering the car, with the aid of his flashlight he saw 'in plain view' on the rear floor of the Oldsmobile 'a handle to a jack which appeared to fit the one underneath the T-bird that had been jacked up'. He also observed on the rear floor, again 'in plain view', a hatchet and a knife in a leather case. In the meantime, other police officers had arrived at the scene. While '(t)he three occupants of the car were (being) removed' and searched for weapons (none were found), Officer Schwartz went to the rear of the car and observed that the trunk lid was open 'two or three inches' with the key in the lock. Without further opening the trunk, he shined his flashlight inside the trunk and 'was able to see a hubcap-chrome in color, the wire type'. He then 'went ahead and opened the trunk and observed not only one but there were four (hubcaps)'. When asked by the prosecutor why he opened the trunk he responded:
Appellant's testimony at the suppression hearing contradicted Officer Schwartz only with regard to whether the trunk was open or closed when the police arrived on the scene. Appellant said the 'trunk was shut', but with the key in the lock. Referring to his request to have the trial delayed until the missing witness could be located, defense counsel said to the trial judge:
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State v. Broberg
...be well advised to ensure that the terms of any stipulation are recorded, and that mutual assent is demonstrated. See McLaurin v. State, 31 Md.App. 375, 356 A.2d 563 (1976). Assuming, arguendo, that the parties did agree to stipulate to the victim's identity, the record illustrates that the......