Merrick v. State

Decision Date19 June 1978
Docket NumberNo. 111,111
Citation389 A.2d 328,283 Md. 1
PartiesLawrence Maurice MERRICK v. STATE of Maryland.
CourtMaryland Court of Appeals

Irwin M. Brown, Assigned Public Defender, Baltimore (Alan H. Murrell, Public Defender, Dennis M. Henderson and George E. Burns, Jr., Asst. Public Defenders, and Arnold M. Zerwitz, Assigned Public Defender, Baltimore, on the brief), for appellant.

F. Ford Loker, Jr., Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., Clarence W. Sharp and Gilbert H. Robinette, Asst. Attys. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

ORTH, Judge.

On 20 October 1975, Lawrence Maurice Merrick, Joyce Marcine Williamson and Nelson Leroy Boone were jointly indicted by the grand jury for Baltimore County. The indictment presented that on 5 October 1975 they "wilfully and of deliberately premeditatedly malice aforethought" murdered (1st count) and conspired to murder (2nd count) Randolph Alexander Williamson, Jr. (Joyce Marcine Williamson's husband). The 3rd count of the indictment charged the common law offense of solicitation to commit a felony, alleging that Mrs. Williamson and Boone solicited Merrick to murder Mr. Williamson. The accused were separately tried in the Circuit Court for Baltimore County. On 15 March 1976, Merrick, whose case is before us on this appeal, was found guilty by a jury as to the 1st and 2nd counts. He was sentenced to imprisonment for life on each conviction, the sentences to run concurrently. He noted an appeal to the Court of Special Appeals, failed to transmit the record in the time required, and was granted a belated appeal under post conviction procedures. The Court of Special Appeals affirmed the judgments. Merrick v. State, No. 1095, September Term, 1976, decided 28 July 1977, unreported. We granted a writ of certiorari. 1

I

Merrick was arrested on 6 October 1975 on the authority of a warrant issued the day before by a judicial commissioner of the District Court of Maryland upon the sworn application of Officer James V. McConville of the Baltimore County Police Department. The warrant alleged that Merrick unlawfully conspired with Mrs. Williamson on 5 October 1975 "to kill and slay" Mr. Williamson. We quote in full, with only minor editing, the "(c)oncise statement of facts showing that there is probable cause to believe that a crime has been committed and that (Merrick) has committed it," set out by McConville in his application for the arrest warrant:

"(Merrick) did conspire (with) Joyce Marcine Williamson to murder and possibly did complete the said conspiracy by murdering Randolph Alexander Williamson, Jr. Nelson Leroy Boone has given information that he received from Joyce Marcine Williamson certain monies in Baltimore County, Md. and paid same to Lawrence Maurice Merrick for the purpose of having him murder Randolph Alexander Williamson, Jr. Further that within the last month Lawrence Maurice Merrick has called coconspirator Joyce Marcine Williamson at her home in Baltimore County. Further that on October 4, 1975 Lawrence Maurice Merrick was aware and told Nelson Leroy Boone that he (Lawrence Maurice Merrick) knew where Randolph Alexander Williamson, Jr. would be in the early morning hours of October 5, 1975. Nelson Leroy Boone gave information that approx. one (1) hour before the body of Randolph Alexander Williamson, Jr. was found dead, Lawrence Maurice Merrick called Williamson's home in Baltimore County. Nelson Leroy Boone also was told by Joyce Marcine Williamson that she had spoken to Lawrence Maurice Merrick about this murder during the month of September, 1975."

II

" The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing . . . the persons . . . to be seized." U.S.Const. amend. IV, applicable to the States through the fourteenth amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). 2 An affidavit for a warrant may be based on hearsay information and need not reflect the direct personal observations of the affiant. Jones v. United States, 362 U.S. 257, 268-271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). However, in such circumstances, as is the case here, a warrant may be properly issued only if the issuing official, in discharging his duty as "a neutral and detached" person to make an independent assessment of probable cause, Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), concludes that (a) the knowledge attributed to the informant, if true, would be sufficient to establish probable cause; (b) the affiant is likely relating truthfully what the informant said; and (c) it is reasonably likely that the informant's description of criminal behavior accurately reflects reality. United States v. Harris, 403 U.S. 573, 587, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (Harlan, J. dissenting). In the case before us, it is not suggested that the commissioner's judgment as to elements (a) and (b) was not properly supported. We are concerned only with the final component, (c), of the probable cause equation. This element, that it appears reasonably likely that the informant's claim that criminal conduct has occurred or is occurring is probably accurate, is satisfied only if there is reason to believe both that the informant is a truthful person generally and that he has based his particular conclusions in the matter at hand on reliable data. Spinelli v. United States, 393 U.S. 410, 413-417, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. State of Texas, 378 U.S. 108, 114-115, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Thus, the affidavit must set forth facts which enable the issuing official to judge for himself both (1) the probable credibility of the informant (the "veracity" prong of Aguilar ) and (2) the reliability of his information (the "basis of knowledge" prong of Aguilar.) Aguilar at 114, 84 S.Ct. 1509. Merrick does not claim that the affidavit did not satisfy the "basis of knowledge" prong. His only concern is with the "veracity" prong. The agreed statement of facts included in Merrick's brief, pursuant to Maryland Rule 828 g, asserts:

"(Merrick) contended at trial and in the Court of Special Appeals that his arrest was illegal because the arrest warrant was defective, and that statements he made following his arrest must be suppressed under the principles announced in Brown v. Illinois, 422 U.S. 590, (95 S.Ct. 2254, 45 L.Ed.2d 416) (1975). The warrant was challenged on the basis that facts alleged as probable cause in the application for the warrant had been received from a named informant whose veracity had not been established."

The affiant here provided no information in addition to that obtained from the informant. 3 The statements of the informant, Boone, were against his penal interest, for he thereby admitted major elements of criminal offenses. Thus, the question for decision is a narrow one: is the probable credibility of an identified informant sufficiently shown on the sole basis that his statements establishing probable cause are declarations against penal interest? 4

The Court of Special Appeals held that the declaration against penal interest contained in the application for the arrest warrant here satisfied the "veracity" prong of Aguilar. It reached this determination on the basis of United States v. Harris, supra, in which Mr. Chief Justice Burger in an opinion announcing the judgment of the Court upholding the validity of a search and seizure warrant, declared, after observing that statements in the application for the warrant were against an unnamed informant's penal interest:

"Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility sufficient at least to support a finding of probable cause . . . ." Id. 403 U.S. at 583, 91 S.Ct. at 2082.

This conclusion, contained in Part III of the opinion, was not shared by a majority of the Court. The Chief Justice was joined only by Mr. Justice Black, Mr. Justice White and Mr Justice Blackmun on the point. Mr. Justice Harlan, with whom Mr. Justice Douglas, Mr. Justice Brennan and Mr. Justice Marshall joined, expressly disagreed in a dissenting opinion. Thus, although there was a majority of five joining in the judgment, there was only a plurality of four in agreement with the opinion delivering the judgment. 5 The lack of an agreement by a majority of the Court on the principles of law involved prevents the opinion from being an authoritative determination for other cases. United States v. Pink, 315 U.S. 203, 216, 62 S.Ct. 552, 86 L.Ed. 796 (1942). See Annot., 65 A.L.R.3d 504 (1975). Its findings, conclusions and views are not constitutionally the "Supreme Law" of Maryland, nor are the "Judges of this State, and all the People of this State . . . bound thereby." 6 In other words, the conclusion regarding statements against penal interest expressed by the four justices in the Burger opinion is not controlling in this State; it is no more binding than is the contrary conclusion reached by the four justices in the Harlan dissenting opinion. Therefore, we may look at the Burger opinion and the Harlan opinion on the question of statements in applications for warrants which are against the penal interest of the declarant only in the frame of reference of the persuasiveness of the respective reasons advanced.

It was found in Part III of the Burger opinion that the declaration against penal interest was an additional reason for crediting the informant's tip, "(q)uite apart from the affiant's own knowledge of (Harris's) activities." Harris at 583:

"Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place...

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