Swain v. State

• Decision Date: 09 October 1981
• Docket Number: No. 94,94
• Citation: 435 A.2d 805,50 Md.App. 29
• Parties: John SWAIN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 29

50 Md.App. 29

435 A.2d 805

John SWAIN v. STATE of Maryland.

No. 94.

Court of Special Appeals of Maryland.

Oct. 9, 1981.

John L. Kopolow, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland on the brief, for appellant.

Philip M. Andrews, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County and Barry Hamilton, Asst. State's Atty. for Montgomery County on the brief, for appellee.

Argued before LOWE, COUCH and WEANT, JJ.

COUCH, Judge.

John Swain was charged by indictment filed November 16, 1979, with premeditated murder and use of a handgun in the commission of a felony. He pleaded not guilty and not guilty by reason of insanity, and elected a jury trial. The trial commenced on July 28, 1980 in the Circuit Court for Montgomery County.

On August 6, 1980, the jury found Mr. Swain to have been sane at the time of the offense, and to be guilty of murder in the first degree and use of a handgun in the commission of a felony. He was sentenced to consecutive terms of life imprisonment for murder and five years imprisonment for the handgun offense.

On appeal, Mr. Swain, the appellant, presents the following questions:

1. Did the hearing court err in refusing to suppress evidence obtained from appellant as a result of his arrest, which was effected in violation of the District of Columbia Fresh Pursuit Statute?

2. Did the hearing court err in holding that appellant's merely telling one police officer that he understood the Miranda rights previously given by another officer constituted an effective waiver of those rights?

3. Did the trial court err in permitting the State to use a medical treatise in the direct examination of its psychiatric expert?

4. Did the trial court err in allowing the State's psychiatric expert to give opinion testimony that was based in part upon conclusions drawn by an uncertified psychologist?

5. Did the trial court erroneously instruct the jury on the element of malice?

For the reasons set forth in this opinion we hold that the lower court did not err in its actions and rulings, and we affirm the lower court's judgment.

The Facts

At approximately 5:30 to 5:45 in the morning of October 25, 1979, Anne Delores Logan was shot five times at close range while she drove on Connecticut Avenue in Chevy Chase, Maryland, a short distance from the Maryland-District of Columbia border. Her 1978 Thunderbird veered off the road and crashed into a tree located in an adjacent part. She died before she could be moved to a hospital.

At this same time, Alec Armbrister prepared to begin his paper route. He was walking along Newlands Street between Connecticut Avenue and Brookville Road when he heard noises sounding like a car backfiring five or six times. He then saw Ms. Logan's car traveling north on Connecticut Avenue, and watched the car as it crashed off the road. Mr. Armbrister entered the small park by jumping over a fence, and he saw a man approach him from the wrecked car.

To Mr. Armbrister's question, "What should I do?", the man replied, "Go and see if the lady was all right." The man also indicated that he would call an ambulance, and then he ran out of the park. Although the morning was still dark, Mr. Armbrister saw that the man in the park was a black male, about six feet tall, not muscular, 165-170 pounds, in his early to mid-thirties, with a low bush-style haircut, and wearing all black clothes, including a black jacket.

Going to the car, Mr. Armbrister saw its occupant, a black woman, slumped over. Immediately thereafter police officers arrived, and requested that the witness write notes concerning what he had seen. He was also informed that the woman he had seen had been shot.

During this time, a second paper boy, Giles Sommerville, was walking along Brookville Road when he heard sirens coming from the direction of Connecticut Avenue. As he reached the intersection with Quincy Street, a man entered the intersection from Quincy. This man nodded as he walked by, responding to Mr. Sommerville's salutation, and then turned north on Brookville Street. Mr. Sommerville described him as a black man, age 25-30 years old, about five eleven to six feet tall, skinny, with close-cut hair, sideburns, and wearing a dark vest, and dark blue trousers.

The initial report of Ms. Logan's car crash reached the Montgomery County Emergency Operations Center (EOC) at 5:39 A.M. The crash was reported as an accident by a member of the Herndon React. ¹ Police officers arrived at the scene by 5:42 A.M., according to EOC records, and quickly reported that a black man had been in the car with Ms. Logan, and had been seen running eastbound, down Melrose from Connecticut.

Following notification by medical personnel at the crash site that Ms. Logan had suffered multiple gunshot injuries, at approximately 5:54 a police officer requested that the radio dispatcher, "Call the Bethesda Station and have an officer on this shift get everyone out of the station they can spare and have them converge on the area down here."

By 6:03 A.M. the police were informed by radio that they had "official permission to work two or three blocks into D.C." The officers were also told that Ms. Logan had died, and that her death appeared to be by homicide (Code O-100). As officers questioned Mr. Armbrister and Mr. Sommerville, descriptions of the homicide suspect were broadcast. The initial description, provided at 6:10 A.M., described a black male, over six foot, wearing dark clothes, and possibly wearing a hat. A subsequent broadcast, based on Mr. Sommerville's questioning, indicated that the suspect was:

"A Negro male, skinny, 5'11 -6'0 , black pants, solid black vest-type jacket, there's a white line in it, and last seen on Brookville, and he's going to be northbound."

Having heard the initial description of the suspect, police officers detained a black male who was walking across Western Avenue, and who was wearing a green Army jacket. The officers reported that they did not believe that he was their suspect, but they did not release him until Mr. Armbrister saw him and confirmed their belief. The Montgomery County Police then continued in their efforts to find the homicide suspect.

One of the participating police officers was Officer Linda Krieger, a four-year veteran assigned to the Bethesda station. Officer Krieger had worked the 10:00 P.M. to 6:00 A.M. shift on a stake-out detail in the Friendship Heights business district which is near the crime scene. She worked alone, in plain clothes, and drove an unmarked van equipped with a police radio. As she prepared to go off duty she heard the first radio communications regarding the wrecked automobile on Connecticut Avenue. Being aware of only a reported personal injury accident, Officer Krieger continued to unload her van at the Bethesda station, while she monitored the police broadcasts.

Following the subsequent reports of Ms. Logan's shooting, that a black male was seen running from the car and that the incident was designated as an "O-100, which is a murder," Officer Krieger drove her police van into the District of Columbia.

As she drove, Officer Krieger continued to receive information regarding the murder suspect from the investigating officers who had questioned the eyewitnesses. She arrived at the site in the District of Columbia where Montgomery County officers had stopped the man wearing a green Army jacket, and she learned of the updated description of the suspect by 6:20 A.M.

Officer Krieger then drove northbound, back towards Western Avenue, which divides Maryland and the District of Columbia. At the corner of Broadbranch and Rittenhouse, which is in the District of Columbia, she saw someone who matched the suspect's description as he appeared near a well-lit bus stop. She saw no other pedestrians in the entire area.

From a distance of fifty feet Officer Krieger did not recognize the suspect. The man did not remain standing on the sidewalk, however, but crossed in front of the police van. Officer Krieger then recognized the suspect as John Swain, the appellant, who worked as a mechanic at a local Chevron station. Mr. Swain had previously serviced Officer Krieger's car, and they had frequently seen each other when she stopped at the Chevron station wearing her uniform on duty.

As Mr. Swain approached the driver's side of her van Officer Krieger called to him by name. He responded by asking, "You are looking for me, aren't you?" Officer Krieger responded, "Yes," because, as she later testified, she knew of an outstanding warrant or criminal summons for Mr. Swain's arrest in a different matter, and because she knew that he fit the description of the homicide suspect.

Concerning their subsequent conversation Officer Krieger stated:

"I said, 'Are you hurt?' Prior to this, the radio transmissions earlier were that the subject might have hit the windshield and may have had some head injury, so I asked him if he was hurt, and I think he said, 'No,' and then I said something to the effect of, 'Get in the car,' and just before that he said, 'Is she dead?' I either said, 'Yes,' or 'I don't know.' And then he walked across the front of the van to get in, and I unlocked the door to let him in....

(O)nce John got in the van, he put up his hands, and he said, 'I don't have a gun.' I said, 'Where is it for my benefit and my safety?' He said, 'I threw it down the hill and I ran.' I said, 'Near the car?' meaning near the accident, and he said, 'Yeah,' and I said, 'Don't tell me anymore right now. I will ask you again later,' and then I patted him down, and I said, 'I am going to have to cuff you.' He said, 'Yeah, I know.'

He said, something to the effect of, 'Don't let them hurt me,' or 'Stay with me.' I told him not to worry, that everything would be okay, and we would get it all straightened out."

At 6:31 A.M., while John Swain walked toward the passenger...