Smith v. State, 69

• Decision Date: 19 May 1967
• Docket Number: No. 69,69
• Citation: 229 A.2d 723,1 Md.App. 297
• Parties: Ronald J. SMITH v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 297

1 Md.App. 297

229 A.2d 723

Ronald J. SMITH v. STATE of Maryland.

No. 69.

Court of Special Appeals of Maryland.

May 19, 1967.

Robert F. Fischer, Baltimore, for appellant.

S. Leonard Rottman, Asst. Atty. Gen., Baltimore, Francis B. Burch, Atty. Gen., Charles E. Moyland, Jr., State's Atty. for Baltimore City, Baltimore, on brief, for appellee.

Before ANDERSON, MORTON, ORTH, and THOMPSON, JJ., and GEORGE L. RUSSELL, Jr., Special Judge.

ORTH, Judge.

On April 6, 1966 appellant was tried in the Criminal Court of Baltimore before Judge Joseph L. Carter, presiding without a jury, under a two count indictment charging illegal possession and control of narcotics and on an addendum thereto charging him with being a third offender. He was found guilty generally of the charges in the indictment and guilty under the addendum and sentenced to ten years imprisonment.

Appellant, an inmate in the Maryland Penitentiary, was searched by a correctional officer of the institution in accordance with a standard procedure of searching inmates as they came in the dormitory during the day. During the search appellant broke away and ran several feet before he was apprehended. The search was continued and the officer found on the appellant a brown envelope containing a needle and syringe and a small plastic container containing a white powdery substance, which on analysis was determined to be cocaine hydrochloride.

Appellant raises four contentions on this appeal. None of them were raised below and this Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court. Maryland Rule, 1085; Tucker v. State, 237 Md. 422, 206 A.2d 691 (1965); Brown v. State, 237 Md. 492, 207 A.2d 103 (1965). In any event, the contentions afford no grounds for reversal when they are considered on the merits.

The first contention raised by appellant is that the search of his person was illegal and the paraphernalia and narcotic drug were improperly admitted in evidence. We do not find the search of the appellant to have been illegal. In Stewart v. State, Md.App., 229 A.2d 727, decided May 19, 1967 we reviewed at length the questions of the search of inmates of penal institutions and the admissibility in criminal prosecutions of contraband seized as a result. We found that such searches, unless conducted in such a manner as to amount to cruel and unusual punishment, do not fall under the constitutional prohibitions as they are not unreasonable. They are authorized by implication as reasonably necessary in the fulfillment of the custodian's duty to maintain prison security, to preserve order and discipline, to insure the safety of the prison population, and to see that the prisoners conduct themselves in a decent and orderly manner. We found that an inmate of a penal institution cannot claim constitutional immunity from search and seizure of his person, and that contraband seized in such a search not only may be confiscated and used as the reason for disciplinary punishment by prison authorities, but, if otherwise admissible, is not rendered inadmissible in a criminal prosecution by reason of the search. Although in Stewart, the officer conducting the search had reasonable grounds to believe that the inmate was in possession of narcotics before the search was made, whereas in the instant case, the officer testified nothing 'attracted' him to the appellant, the search here was pursuant to a normal procedure of 'spot checking inmates' when they entered the dormitory during the day. We do not find that such searches are an undue harassment or oppression of inmates subjecting them to cruel or unusual punishments. We hold that the search of appellant was reasonable and the evidence seized properly admitted.

Appellant's second contention is that the documentary evidence which was presented in support of the allegations of the addendum was not in proper form and was improperly admitted. The two indictments admitted in evidence as proof of appellant's prior convictions of violating the narcotics laws were not forwarded to us as a part of this record. In any event, the transcript of the proceedings below shows that 'the clerk's copy' of each indictment was admitted without objection. The phrase 'clerk's copy' does not mean, necessarily, as appellant assumes, that they were copies of the original papers. The record indicates that they were the original indictments in the custody of the Clerk of the Criminal Court of Baltimore and therefore not required to be certified under the provisions of Maryland Code (1957), Art. 35 § 76 to be admissible evidence.

Appellant's third contention is that the representation afforded by his counsel below was so inadequate as to deprive him of a fair trial because the counsel: (a) failed to question the legality of the search; (b) allowed testimony in support of the addendum to be introduced in evidence prior to a finding of guilt on the current charge; (c) failed to file a motion for a new trial. The complaint of inadequate counsel is not supported in the transcript of the record of the trial. (a) We have found the search to have been lawful and objection would have been fruitless. (b) In the absence of an election by a defendant both the current offense and the issue of whether or not the defendant is a second or subsequent offender shall be tried concurrently. Maryland...