Neam v. State

• Decision Date: 28 January 1972
• Docket Number: No. 278,278
• Parties: James Michael NEAM, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 180

14 Md.App. 180

286 A.2d 540

James Michael NEAM, Jr. v. STATE of Maryland.

No. 278.

Court of Special Appeals of Maryland.

Jan. 28 ,1972.

Argued by Frank M. Kratovil, Hyattsville, with whom was Daniel D. McFarland, Hyattsville, on brief, for appellant.

Argued by Gilbert Rosenthal, Asst. Atty. Gen., with

whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., and Jayson L. Amster, Asst. State's Atty., Prince George's County, on brief for appellee.

Argued before ANDERSON, THOMPSON and MOYLAN, JJ.

MOYLAN, Judge.

Recognizing at once its utility and its hazards, the law permits evidence of prior crimes to be used to impeach the credibility of even a defendant-witness but austerely limits such prior crimes to actual convictions and, indeed, to convictions consonant with the Sixth Amendment's right to counsel. ¹ The case at bar reveals the hazards at their most virulent.

It was just before midnight on New Year's Day, 1970, when Wayne and Virginia Williams, with their three-month-old daughter, were returning to their apartment-home in Hyattsville. Within seconds after their car had stopped on the parking lot adjacent to the apartment house, Mr. and Mrs. Williams were confronted by a gunman who, threatening them with their lives, demanded and received Mr. Williams's wallet and watch and Mrs. Williams's purse. A Prince George's County jury, presided over by Judge Robert B. Mathias, convicted the appellant, James Michael Neam, Jr., of the armed robbery. Upon that conviction, he was sentenced to 15 years imprisonment and ordered to the Patuxent Institution for evaluation as to possible defective delinquency. The appellant attacks his conviction on a broad front, alleging prejudicial error:

(1) in that his arrest was illegal and any evidence flowing therefrom inadmissible;

(2) in that certain incriminating evidence seized from his apartment was seized pursuant to a search beyond the scope of that permitted as an incident of a lawful arrest (3) in that he was unfairly prejudiced by being cross-examined as to narcotics addiction for the ostensible purpose of impeaching his credibility as a witness in his own behalf;

(4) in that hearsay evidence was used by the State to establish probable cause for the issuance of his arrest warrant;

(5) in that an impermissibly suggestive extra-judicial photographic viewing tainted the later in-court identification made of him by Mr. Williams; and

(6) in that the evidence was legally insufficient for the trial judge to have submitted the case to the jury.

In view of our feeling that the appellant must prevail in his third contention, it will be unnecessary to enter into any extended discussion of the other five contentions. Because of the strong possibility that they may arise again, should the State choose to retry the appellant, it may be helpful to the court below upon retrial if we do treat them briefly, however.

In challenging the legality of his arrest, the appellant takes offense at the manner of its execution. He seeks to avail himself of the requirement that the police give proper notice of their purpose and authority before using force to break and enter any premises to effectuate an arrest, as that requirement was staed in Henson v. State, 23 Md. 518, 204 A.2d 516, and restated in Berigan v. State, 2 Md.App. 666, 669-670, 236 A.2d 743, lest the arrest itself be deemed illegal because of the excesses committed in its execution. The Henson-Berigan doctrine is simply inapposite to the facts at bar. The arresting officers here were proceeding pursuant to a judicially-issued arrest warrant. They went to the appellant's apartment at approximately 4:15 a. m. on January 3, 1970. They knocked loudly upon the door and announced their presence. At first, there was no answer. There ultimately was an extended conversation between the appellant and the arresting officers through the locked door. They indicated that they had a warrant for his arrest. He indicated that he did not believe that they were police officers and demanded that a badge be slid under the door. The police did not comply with that demand. Although several of the officers were in plain clothes, they were accompanied by several other uniformed officers. At least one well-marked police cruiser, with spotlights, was parked immediately outside. The appellant armed himself and retreated to a bathroom. The police ultimately entered by virtue of a passkey obtained from the apartment manager. The appellant testified that the police kicked in the door. Even after the police were on the inside of the apartment, discussion continued with the armed appellant in the bathroom. He was ultimately persuaded to throw down his gun and to surrender himself to the police. There was nothing in the manner of effecting this arrest that offends Henson or Berigan. The gun, a photograph of which was offered in evidence, taken from at the feet of the appellant at the time of his arrest, was properly seized by the police as an indisputably necessary incident of that arrest.

Upon his second contention, the appellant seeks to avail himself of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. The attempt is unavailing. The evidence shows, to be sure, that the appellant was arrested in his living room. It shows that, after the arrest but before the officers left with the appellant for the police station, certain incriminating items, identification cards of the robbery victim, were seized by the police from the top drawer of a chest of drawers located in the appellant's bedroom. The appellant urges that a search of a closed bureau drawer in a bedroom is, under Chimel, beyond the permissible scope of a search incidental to a lawful arrest which takes place in a living room. His legal proposition is, as a legal proposition, unassailable. It has, however, no factual predicate in the present evidence. At an intra-trial suppression hearing, Officer Taylor testified, and the trial judge upon that uncontradicted testimony found, that no search occurred. Officer Taylor stated that just before leaving for the police station, the appellant, in handcuffs, requested, 'Would you get my wallet for me?' The officer replied 'Where is it?' The appellant responded, 'In the dresser drawer.' The officer repeated, 'Do you want me to get it for you?' The appellant replied, 'Yes.' The officer testified that as he reached into the top dresser drawer to get the wallet, he accidentally knocked over a handkerchief. He then observed the identification cards of Mr. Williams. The appellant did not testify at the suppression hearing.

Upon the facts as found by the trial judge, supported by the testimony of Officer Taylor, this inadvertent and unexpected chancing upon incriminating evidence at a time when the officer was legitimately upon the premises for another purpose would qualify as a 'plain view' exception to the warrant requirement for the seizure of evidence. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, 581-587. Upon the facts, as they were found to be, Chimel is simply inapplicable.

The appellant's fourth contention is that he was prejudiced by the introduction of hearsay evidence from two out-of-court declarants, an unnamed police informant and one Charles Whitcup. It is clear, however, that such hearsay was offered only in the course of the intra-trial suppression hearing and solely on the question of whether the issuing magistrate had probable cause to issue an arrest warrant. It is settled that hearsay information is admissible within that context. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Dawson v. State, 11 Md.App. 694, 276 A.2d 680.

Nor may the appellant prevail in his fifth contention that the in-court identification made of him by Mr. Williams was the tainted product of an earlier impermissibly suggestive photographic viewing. The trial judge found, and the evidence supported the finding, that nothing occurred in the course of either of two sessions where Mr. Williams viewed photographs to give rise to any 'likelihood of any irreparable identification' in contravention of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. The trial judge found further, and again the supporting evidence was present to substantiate the finding, that the in-court identification made by Mr. Williams was independent of any pretrial viewing of the appellant or of his photograph and was the product, rather, of his independent recollection from the night of the robbery. United States v. Wade, 388 U.S. 218, 240-242, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Smith v. State, 6 Md.App. 59, 68-69, 250 A.2d 285.

The appellant's final contention is that the evidence against him was legally insufficient to permit the trial judge to submit the case to the jury. Simply to recite the in-court identification made by Mr. Williams of the appellant as his assailant and to recite the recovery of Mr. Williams's identification cards in the appellant's bureau drawer some 28 hours after the robbery is to demonstrate the insubstantiality of the appellant's contention in this regard.

It is rather upon the rocks of the appellant's third contention that the prosecution founders. The appellant took the stand in his own defense. His direct examination consisted largely of asserting an alibi to the effect that, while the...