Robinson v. State

• Decision Date: 15 August 1973
• Docket Number: No. 864,864
• Parties: Bernard William ROBINSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 678

18 Md.App. 678

308 A.2d 734

Bernard William ROBINSON v. STATE of Maryland.

No. 864.

Court of Special Appeals of Maryland.

Aug. 15, 1973.

Certiorari Denied Oct. 9, 1973.

[308 A.2d 736] John F. Mudd, Baltimore, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., John C. Hancock, State's Atty., for Charles County, and Richard J. Clark, Asst. State's Atty., for Charles County, on the brief, for appellee.

Argued before GILBERT, MENCHINE and SCANLAN, JJ.

GILBERT, Judge.

The discovery of the bodies of two 15 year old boys in a rural woods in Charles County led to the indictment and conviction of Bernard William Robinson, appellant, on two charges of murder in the first degree for which Robinson was sentenced to concurrent terms of life imprisonment.

In this appeal, appellant asserts 9 reasons why the judgments of the Circuit Court for Frederick County should be reversed. He states:

1. That a confrontation with a witness was impermissibly suggestive.

2. A pistol taken from his automobile was the fruit of an illegal seizure.

3. Carbon residue extracted from the exhaust pipe of his automobile was also the fruit of an illegal search and seizure.

4. The taking of blood and hair samples from his person without his consent was constitutionally proscribed.

5. The seizure of a pair of gray schoes, without the benefit of a search warrant, from the residence occupied by him, precluded the introduction of the shoes into evidence.

6. Appellant's objection to the admissibility of opinions of expert witnesses should have been sustained.

7. Objections to questions asked of the appellant, which exceeded the scope of direct examination should have been sustained.

8. The trial court erred in failing to grant his motion for judgment of acquittal.

9. The trial judges' instruction to the jury concerning the burden of proof was erroneous.

The record discloses that at approximately 9:00 a. m. on June 8, 1971, the bodies of James Miers and Clark Larcher, both 15 years of age, were found in a woods a short distance from Wilkerson Road, in Charles County. The person who found the bodies, James Wilkerson, a farmer of that area upon whose land the bodies actually were located, had his attention drawn to the scene by his observing blood stains on the road. Mr. Wilkerson thought that possibly a deer had been struck by an automobile, but upon a closer examination of the area adjacent to the road he discovered the bodies. The police were immediately notified.

The autopsy report showed that Miers had been shot twice in the right temporal area of the head by a .22 caliber weapon. Larcher had been wounded six times, four of which bullets entered his head.

Expended .22 caliber cartridges and blood stains were discovered at the location of the bodies and also at a tapaper shack that was approximately one-half mile from the place where the bodies had been found. The blood stains were the same bolld type as that of both victims.

On the afternoon of June 9, Shelton Plumer, while at his place of employment, received a phone call that someone was walking around his house. Three or four minutes later, Mr. Plumer arrived at his home and upon entering it 'At first I was under the impression as I was pulling up to the rear of this car (the appellant's) After the appellant was removed from the scene as a result of his arrest for breaking and entering, the murder investigation apparently focused upon him.

observed a man approximately 10 to 14 feet away from him. The man had gained access by prying a screen from a window. He made a hasty exist through an open window. Plumer called the police, and described the person who had entered his house as wearing a 'short sleeved yellow shirt, and dark trousers.' He further described a Chevy II automobile, bearing tag JX 8288, heading[308 A.2d 737] east, as the car in which the person had fled. Plumer said that he noticed that a wallet and approximately $200.00 were missing. Within a matter of a few minutes Deputy Sheriff John H. Wood, who had received radio information of the breaking and entering, observed an automobile matching the description of that in the broadcast, and further saw the appellant, wearing a yellow shirt, standing alongside the car. Wood immediately stopped his vehicle, placed the appellant under arrest, and conducted a search of appellant's person. During the course of the search he removed $276.00 in paper currency, and change, from the appellant, as well as a box of .22 caliber long cartridges. Wood then placed handcuffs upon the appellant and put him in the police vehicle. Wood testified that when he started back to search appellant's car, the appellant got out of the police car, making it necessary for Wood to return and put the appellant back in the police car. Wood then returned to the appellant's automobile and looked inside, where he saw a tape recorder on the floorboard of the passenger's side of the front seat, and he found a .22 caliber pistol under the driver's seat of the vehicle. His testimony was then slightly confusing as to whether he conducted the search of the vehicle prior to the arrival of other officers for whose assistance Wood had radioed, or whether he had searched the vehicle after the arrival of the other officers. Initially Wood's testimony was that the others had arrived before the search. He later recanted and said that he conducted the search before the arrival of aid. The latter version was supported by the testimony of another deputy, Donald L. Poole of the Charles County sheriff's office, who told the court that it was -- -- my first impression was (Wood) had his service revolver out. As I got out of my vehicle I observed that his weapon was holstered and that it was another weapon that he was holding.'

The police visited the residence of the appellant's brother with whom the appellant had been living, and received permission, in writing, to search the premises. From the premises they recovered a pair of gray shoes that bore stains appearing to be blood. In an automobile on the property of the brother, the officers located a jacket which was also stained with what they thought to be blood. The automobile of the appellant was removed to a service station. While there, State police, having observed what appeared to be cardon residue on the road near the place where the bodies had been found, and also on the grass near the tarpaper shack, extracted carbon from the exhaust pipe of the appellant's vehicle. Because of the discovery of blood and body near in the shack, a search and seizure warrant was obtained for the purpose of taking hair, as well as blood samples, from the person of the appellant.

Following indictment in Charles County, the appellant sought removal. The case was sent to Frederick County for trial.

THE CONFRONTATION WITH A WITNESS

After the appellant's arrest by Deputy Wood, appellant was taken to the residence of Plumer where Plumer identified him as the person who had broken into his, Plumer's, house. Appellant maintains that the identification was impermissibly suggestive. The charges, as we have previously noted, upon which the appellant was convicted, were the murders of Miers and Larcher. He was not tried for the breaking and entering of Plumer's home, nor do we perceive from this record that he was charged with the same. The question of whether, vel non, the identification of

appellant by Plumer was impermissibly suggestive, and hence constitutionally proscribed, Simmons v. United States, 390 U.S.[308 A.2d 738] 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1868); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104 (1968); Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966); Davis v. State, 13 Md.App. 394, 283 A.2d 432 (1971), cert. denied, 264 Md. 746 (1972); Spencer v. State, 10 Md.App. 1, 267 a.2d 323 (1970); Billinger v. State, 9 Md.App. 628, 267 A.2d 275 (1970), is not relevant to this appeal. Even if we were to assume, which we do not, that the confrontation was tainted, such an assumption would have no direct or indirect bearing upon the trial for the murders of Miers and Larcher. The contention raised by appellant is, at best, under the circumstances of this case an abstract point of law, and we shall not consider it.

THE SEARCH OF THE AUTOMOBILE

Appellant argues that the search of his automobile by Deputy Wood was illegal because Wood 'did not have probable cause to believe that the car contained evidence of a crime and further there were no exigent circumstances making the obtention of a warrant impractical.' Appellant grounds his attack upon the search on the premise that the appellant had been handcuffed and placed in the police vehicle at the time of the search, and that other police officers had arrived at the scene, so there was no reason to conduct the search for personal safety, nor was the search incident to an arrest. Consequently, appellant alleges a search and seizure warrant should have been obtained before the police conducted the search of the car. Failure to obtain the search warrant, in appellant's view, renders the seizure of the .22 caliber pistol illegal so that the weapon could not be used in evidence against the appellant.

We think the search of the automobile to be proper.

Deputy Wood had probable cause to believe at the time he arrested appellant that a felony had been committed and that the appellant had committed it. Wood had received information via police radio broadcasts that the home of Shelton Plumer had been broken into by one 'colored male about 5 10 wearing a yellor shirt' and dark pants, and that 'there was a wallet with approximately $200.00 missing.' Deputy Wood received further information that the suspect had entered an automobile and 'that the vehicle had fled the scene and that it was a '62 light blue Chevrolet bearing Maryland Registration JX 8288.' W...