Pettiford v. State

• Decision Date: 28 January 1970
• Docket Number: No. 153,153
• Citation: 8 Md.App. 560,261 A.2d 216
• Parties: Herman Lee PETTIFORD and John Oliver Berry v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 560

8 Md.App. 560

261 A.2d 216

Herman Lee PETTIFORD and John Oliver Berry v. STATE of Maryland.

No. 153.

Court of Special Appeals of Maryland.

Jan. 28, 1970.

Certiorari Denied May 11, 1970.

Arthur G. Murphy, Baltimore, for appellant Pettiford.

Irving B. Klitzner, Baltimore, for appellant Berry.

William E. Brannan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., and Joseph Harlan, Asst. State's Atty., for Baltimore City, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

THOMPSON, Judge.

Herman Lee Pettiford appeals from a conviction for keeping a dwelling house for the purpose of selling narcotics. A codefendant, John Oliver Berry, appeals from a conviction of possession of narcotics and of being a second offender under an addendum thereto. They were tried before Judge George D. Solter sitting without a jury in the Criminal Court of Baltimore and sentenced to terms of five and ten years respectively. Questions presented on appeal concern: (1) the sufficiency of the evidence, (2) the legality of the searches, (3) failure of the trial judge to render a verdict as to the addendum and (4) the failure to provide Berry with a continuance for the purpose of obtaining counsel of his own choosing.

In order to properly present the issues it will be necessary to recite the evidence in some detail.

Detective Clyde Vernon Wilhelm of the Narcotics Unit, Baltimore City Police Department, by stipulation of counsel, read into the record his affidavit which he previously executed to secure a search warrant for the premises at 1841 North Register Street. The testimony was presented as to the question of guilt or innocence because the search warrant was not challenged below nor was evidence seized thereunder objected to below. The substance of his testimony follows:

The aforesaid premises were occupied by John Oliver Berry and another known by the alias 'Al.'

On May 14, 1968, at approximately 9:20 P.M. Detective Wilhelm and Detective Larry Clark met an informant who had previously furnished reliable evidence. This informant, given $5. by the officers, made a purchase at 1841 North Register Street from an individual called 'Al' of two (2) gelatin capsules containing white powder, later determined to be methadone-amidone, a synthetic prohibited narcotic drug. The seller was identified as a colored male, 5 10 to 5 11 , 19-21 years of age, wearing a mustache, small goatee and bushy hair and clothing green in color.

Detective Wilhelm met the same informant on May 23, 1968, at about 8:45 P.M. at which time the latter called the telephone number 732-6554 and arranged to make a purchase from 'Al' by meeting him at a telephone booth at North Avenue and Register Street. The informant's part of this conversation was heard by two officers. The informant was taken by police vehicle to the intersection of North Avenue and Broadway where he existed the vehicle. At about 9:05 P.M. Detective Wilhelm observed the informant and an unidentified individual make some sort of exchange. The material from this exchange was later identified as two clear gelatin capsules containing a white powder later determined to be methadone-amidone. The unidentified individual, who was seen at the premises 1841 North Register Street prior to the transaction an who returned thereafter, was described as a Negro, 5 10 , 19-20 years of age, bushy hair and wearing clothing gold and brown in color.

On May 27, 1968, Detective Wilhelm placed the 1841 North Register Street premises under surveillance from approximately 2:00 P.M. to 4:05 P.M. At approximately 3:10 P.M., he observed the same individual he had seen on May 23, 1968, make a transaction with the informant, leave the premises, go some distance from the house, make an exchange of something with a white man and return to the same house.

At approximately 3:37 P.M. appellant Pettiford, identified in court, was seen entering the premises where he remained for the rest of the surveillance period. At 3:45 P.M. the officer saw a Negro female enter, at about the same time a Negro male, unsteady and staggering, left the premises. At 4:00 P.M. he saw a Negro female enter and at that time ended his detail. The officer testified that while working in an undercover capacity in November of 1966, he had several conversations with Pettiford in reference to narcotic drugs.

On June 13, 1968, the Register Street house was again watched from 7:20 A.M. to 9:45 A.M. At 7:50 A.M. the officer saw a person known to him as appellant, John Oliver Berry, lean out the upstairs window and look up and down the street. Again at 8:05 A.M., the officer saw appellant Berry look up and down the street from the front door. At 8:24 A.M., Berry admitted a white woman to the house who remained approximately one minute and departed in the same cab used for arrival. At 8:55 A.M., Berry left the premises, held a brief conversation with a white man some distance therefrom and returned to the house. At 9:25 A.M. he admitted a Negro male into the house who remained inside for approximately one minute and left; surveillance ended at 9:45 A.M. Berry had made a sale of narcotics to the same officer on November 8, 1966.

On June 18, 1968, at approximately 6:10 A.M., a search warrant for the premises in question was executed by Detective Wilhelm, Detective Sergeant Leon Tomlin, and other police officers. Bruce Rudell Jackson and Virginia Gaylord were occupying a bed in the rear bedroom on the second floor; Dennis A. Jackson was found occupying the middle bedroom on the second floor, and John Oliver Berry was in the front bedroom of that same floor.

The rear bedroom was searched by Detective Sergeant Tomlin and a box containing 272 clear gelatin capsules filled with white powder was found taped underneath the second dresser drawer. The powder was diagnosed to be methadone-amidone, a synthetic prohibited narcotic drug.

Detective Fred Entz recovered from a chair cushion in the front bedroom a brown paper bag containing 32 clear gelatin capsules filled with white powder, later diagnosed to be methadone-amidone, and one manila envelope containing a clear substance, later diagnosed to be marihuana. Appellant Berry was found sleeping in the bed in that room.

On the first floor in the kitchen refrigerator, Detective Wilhelm found one envelope containing 26 red gelatin capsules with a white powder inside and one manila envelope containing two red gelatin capsules with a white powder inside, later diagnosed to be cocaine.

The searching officers found on the dresser in the second floor front bedroom a receipt from William E. Koons, Inc., a real estate company, in the name of appellant Herman Lee Pettiford for the premises 1841 North Register Street and between the wall and the dresser of the same bedroom a gas and electric bill in the name of Herman Lee Pettiford for 1841 North Register Street. The rent receipt was for May, 1968 and the gas and electric bill was for the period up to June 10, 1968, payable by June 27, 1968. An arrest warrant was obtained for appellant Pettiford.

On July 9, 1968, at approximately 12:05 P.M., the officers went to the residence of Ida Mae Green, 1432 North Eden Street and placed appellant Pettiford under arrest. He was found in bed in the rear bedroom of the third floor. After the arrest a search was conducted of the third floor bedroom where three empty capsule boxes and a brown box containing numerous glassine bags were found. The opinion of the police officer, based upon his experience as a narcotics officer, was that both the capsules and the glassine bags were of the type commonly used to package narcotic drugs. The arresting officers also recovered two rent receipts for the address 1841 North Register Street dated August 7, 1967 and August 19, 1967 in the name of appellant, Pettiford.

In defense appellant Berry testified that prior to April 24, 1968, he had been incarcerated at Hagerstown, Maryland, and from that date until the time of the raid by police officers had been living alone at 1841 North Register Street except for a few occasions when his friends were allowed to stay there. Berry further testified he was paying the rent but he had asked Pettiford to take care of it for him prior to his release from prison; he had expected an earlier parole. Berry also claimed he paid the telephone, gas and electric bills. He admitted the narcotics found in the house belonged to him and said none of the other defendants knew about the presence of narcotics on the premises. He also admitted selling drugs for about three years and having been previously convicted of possession of heroin. Appellant Berry stated that he had never sold any narcotics to Pettiford; that Pettiford had never spent the night at 1841 North Register Street; and that he had never gotten any narcotics from Pettiford.

The appellant Pettiford testified he had obtained the premises as a favor for John Berry because Berry could not get credit before his expected parole. When Pettiford discovered he could not rent the premises in the name of Berry, he rented the premises in his own name. He admitted that he had paid the gas, electric, and telephone bills until Berry came home.

Contentions as to Appellant Pettiford

Pettiford first contends there was insufficient probable cause for the issuance of the search warrant, but since this issue was not presented to the trial court, it is not before us. Maryland Rule 1085. He also contends the warrant for his arrest was based on insufficient probable cause. When an arrest warrant is valid on its face, we are aware of no procedure in this State to attack its issuance for the lack of probable cause. Williams v. State, 6 Md.App. 511, 516, 252 A.2d 262. See also Duggins v. State, 7 Md.App. 486, 256 A.2d 354.

Pettiford next contends the search incident to his arrest at 1432 North Eden Street was unreasonable;...