Robinson v. State
| Decision Date | 09 July 1968 |
| Docket Number | No. 106,106 |
| Citation | 4 Md.App. 515,243 A.2d 879 |
| Parties | Warren Christopher ROBINSON v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County, on brief, for appellee.
Before MURPHY, C. J., and MORTON, ORTH and THOMPSON, JJ.
The appellant was found guilty of storehouse breaking with intent to steal goods of the value of $100 or more 1 and grand larceny by a jury in the Circuit Court for Prince George's County. He was sentenced to imprisonment for a term of 5 years on each offense, the sentences to run concurrently.
About noon on 4 July 1965, Officer Charles Ward of the Prince George's County Police Department, on routine patrol, observed that a lock had been cut on a gate in the chain fence enclosing an area in which a storehouse was situated. He drove into the area and further observed that a door to the storehouse had been broken. He saw four men inside the storehouse. One of them called, 'There's the cop's and all four ran. Two of them, one of whom the officer identified as the appellant, ran out the door. The officer chased them and they jumped the fence and escaped amid a fusillade of shots fired by the officer. He 'put a lookout' for the four men, for breaking and entering, describing the clothes of the appellant and the other man who had jumped the fence.
Officer Philip Donahue, of the Bladensburg Police Department, heard the lookout about 12:10 P.M. He saw the appellant and another man answering the descriptions given 'coming out from the railroad tracks' about three-quarters of a mile from the storehouse. 'I observed the defendant and then I saw The evidence as above summarized was received in the presence of the jury. The appellant objected to testimony with regard to the Cadillac and the photographs of it when the photographer was testifying, when Officer Ward was testifying, when Officer Bishop was testifying and objected to the photographs being received in evidence. He moved for a mistrial when the bolt cutters were displayed and identified and later moved for a mistrial regarding the evidence concerning the Cadillac 'because just to move to strike all the testimony about this Cadillac from the trial, there has been too much in it and the pictures 'Now, there is certain evidence that was admitted during the course of the trial that was also stricken by virtue of the motions because the Court determined that the search, original search, was an illegal search and all the fruits that flowed from that illegal search are inadmissible. Therefore, you will strike from your minds all the exhibits that were admitted except-may I have them, Mr. Clerk?-the picture of the broken glass on the door, the picture of the inside of the warehouse showing the safe and the other pictures showing the safe with the pipe here sitting on top of it. You Maryland Rule 729, effective 1 September, 1967, provides for the filing of a motion for the suppression, exclusion or return of property seized which may be used as evidence at trial on the ground that it was obtained by an unlawful search or seizure. Section b, subsection 1. But the rule does not require a pre-trial motion and the failure to file such motion before trial 'shall not constitute a waiver of a defendant's right to object at the trial to the introduction of such evidence'. Section c. When such motion is filed at least five days prior to the trial date, or if a petition is transferred to the court of criminal trial jurisdiction as provided by the rule, the trial shall not commence until the matter is determined by the court. Section d, subsection 1. In all other cases the court shall have discretion to determine the motion as a preliminary matter or during trial. 'If the case is being tried before a jury the hearing on the motion, or on an objection to the introduction of evidence alleged to have been obtained by an unlawful search and seizure, shall be out of the presence of the jury'. Section d, subsection 2. The rule was not effective at the time of the appellant's trial, but the substance of it was the preferred procedure prior to its adoption. It was established before the rule was adopted that the determination of the admissibility of evidence which is dependent upon the lawfulness of an arrest should be made by the trial judge as a preliminary matter quite apart from the question of the guilt or innocence of the accused. 'If the case is being tried before a jury, such a matter should be heard out of the presence of the jury'. Farrow v. State, 233 Md. 526, 533, 197 A.2d 434, 438. Nor was it essential prior to the effective date of the rule, that a motion to suppress the evidence be made prior to trial.
that he was running, his pants were all raggedy and torn up and he matched the description that the lookout was put out for'. They came onto Kenilworth Avenue, 'hitch hiking.' As the officer approached in his car, they entered a car which had stopped to give them a lift. Donahue ordered them to give them a point and the appellant said to his companion, 'Let's get him. There's only one of him'. The officer called for help on his car radio and about five minutes later Officer Donald DeSantis of the Prince George's County Police Department arrived. He searched them-'we always check them for weapons before they get in the car or anything of that nature'-and seized $205 from the person of the appellant. He took them back to the storehouse and turned the man and the money over to Sergeant Joseph Thornberry who was at the scene with other officers. Detective Sergeant Frank Bishop arrived and the appellant was again searched and an automobile registration card seized from him. 'As a result of information on that registration card' Bishop went to a white 1962 Cadillac convertible that was parked outside the front gate of the storehouse fence and, without opening the doors, looked inside, and saw a pair of bolt cutters on the rear floor. He searched the car and seized the bolt cutters. They were identified by him at the trial. The automobile was taken to the police station lot in Seat Pleasant and photographed. At the trial two photographs were identified by the photographer and by Bishop as being photographs of the automobile from which the bolt cutters were recovered. The bolt cutters, although marked for identification, were never offered in evidence. The photographs were received in evidence while Bishop was on the stand
have been admitted in evidence and it is highly prejudicial.' He moved to strike all testimony with regard to the bolt cutters. The answer of the State to that motion was that the bolt cutters were not going to be introduced in evidence. The bases of his objections and motions were that his arrest was illegal and that the search of his person and automobile and the seizure of evidence as a result thereof were unlawful. The objections were overruled and the motions denied. At the conclusion of evidence offered by the State the trial court said to the jury, 'Members of the jury, anything you see lying around on the table introduced for identification purposes, unless it has been offered in evidence and admitted in evidence[243 A.2d 883] you are not to consider it.' It denied a motion for judgment of acquittal on all counts. 2 At the conclusion of all the evidence the appellant moved 'to strike from the evidence and the record the items seized as a result of the arrest, and that is the wallet and its contents, the registration card, the subsequent seizure of the Cadillac, the pictures of the Cadillac and the pictures that have been placed in evidence, and in addition the $205. All references within the record concerning these matters should be struck and we base our motion on the fact of the illegal arrest'. The court then granted the motion to quash all the evidence as to the bolt cutters, the car and the pictures of it and the cash. It denied a motion for judgment of acquittal as to the storehouse breaking and larceny and granted the motion as to receiving stolen goods. In its charge to the jury the court said
may properly consider that along with the two plats that were drawn by the witnesses. And you may likewise consider all the testimony that has not been excluded other than the fruits of the search, you may not consider that. The snippers (bolt cutters) and the pictures of the automobile and the possession on the defendant of the sum of money, you may not consider that because that flowed from the fruits of an illegal search'
A motion to suppress the evidence and objection to its introduction at trial preserved a defendant's basic constitutional right. Shrout v. State, 238 Md. 170, 174, 208 A.2d 585. In the instant [243 A.2d 884] case we think the trial court erred in not determining the matter of the admissibility of the challenged evidence out of the presence of the jury. The question is whether in the facts and circumstances the error was so prejudicial as to require reversal of the judgments
The law of arrest in Maryland has not been codified but is the 'spawn of judicial and social thought, to many * * * long been considered mature in its present state'. The Law of Arrest in Maryland by David Kauffman, 5 Md.L.Rev. 125, 171 (1941). Mr. Kauffman points out: 'To those more keenly cognizant of the change in the requirements of an administration of criminal justice, the doctrine is not only mature, it is over-ripe'. The probative force of this observation is enhanced by the felony-misdemeanor distinction in this State, for this distinction plays a large part in the determination of whether an arrest made without a warrant is valid or invalid, Shelton v. State, 3 Md.App. 394, 239 A.2d 610; Boone v. State, 2 Md.App. 479, 235 A.2d 567, and, in turn, the...
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