Thomas v. State

• Decision Date: 07 December 1981
• Docket Number: No. 243,243
• Citation: 437 A.2d 678,50 Md.App. 286
• Parties: Randolph THOMAS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 286

50 Md.App. 286

437 A.2d 678

Randolph THOMAS v. STATE of Maryland.

No. 243.

Court of Special Appeals of Maryland.

Dec. 7, 1981.

Michael R. Braudes, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland on the brief, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City and John Thompson, Asst. State's Atty. for Baltimore City on the brief, for appellee.

Submitted before MASON, LISS and BISHOP, JJ.

BISHOP, Judge.

Randolph Thomas, the appellant, was indicted for first-degree premeditated murder, felony murder, armed robbery, use of a handgun in the commission of a violent crime, and various lesser included offenses, related to an incident of February 11, 1980. He was tried by a jury in the Criminal Court of Baltimore on September 4-16, 1980.

The jury convicted Thomas of both felony murder and armed robbery. The trial judge merged the armed robbery conviction into the felony murder conviction and imposed a sentence of life imprisonment, suspending all except fifty years of that term.

On appeal Thomas asks:

"1. Did the trial court err in denying Appellant's motion to suppress predicated upon the lack of specificity of the search warrant?

2. Did the trial court err in failing to provide defense counsel with the complete grand jury testimony of Melvin Thomas?

3. Did the trial court err in denying motions to strike two jurors for cause?

4. Did the trial court err in denying Appellant's motion to dismiss predicated upon the denial of a preliminary hearing?

5. Did the trial court err in overruling Appellant's objection to a question by the prosecutor implying that Appellant had committed an unrelated crime?

6. Did the trial court err in instructing the jury that searches and seizures leading to the introduction of evidence against Appellant were valid and authorized?

7. Did the trial court err in permitting the jury to take into the jury room during deliberations only the court's instructions regarding the definition of the alleged offenses and not matters such as the State's burden of proof, the presumption of innocence, and the definition of 'reasonable doubt'?

8. Did the trial court err in permitting the prosecutor in closing argument to argue facts not in evidence?"

For the reasons set forth in this opinion we answer each and all of the appellant's questions in the negative, and we affirm his conviction.

The Facts

On February 11, 1980, at approximately 9:00 p. m., three armed men wearing ski masks entered Charlie's Bar on East Baltimore Street. At gunpoint one of these robbers took $77.00 from the bar's cash register. The State contended at trial, and the Baltimore City jury concluded, that this robber was the appellant.

A second gunman, subsequently identified as one Darnell Williams, shot a bar patron in the face with a 12-gauge shotgun, instantly killing the victim.

The third gunman, one Michael Mebane, having previously pled guilty to second-degree murder, testified as a State's witness at the appellant's trial. Mebane testified that Thomas was the robber who stole the $77.00 of cash.

Further testimony was provided by Detective James Ozazewski who testified that subsequent to the offense he interviewed Randolph Thomas. According to Detective Ozazewski, the appellant initially admitted involvement in the crime but subsequently denied participation.

The appellant himself testified that he spent the evening of February 11, 1980 watching television. He speculated as to the "actual" identity of the other robber as a friend of Williams and Mebane. Randolph Thomas testified that certain physical evidence of the crime, seized from the appellant's home, belonged to Mebane.

Additional facts will be presented with the discussion of each issue.

I. Search Warrant

A search and seizure warrant signed by a reviewing judge on February 20, 1980, supported by a written application and attached affidavit, was submitted to the lower court. On the date the warrant was signed, the police executed the warrant at the premises designated in the warrant. Items seized included a pair of tennis shoes and part of a shotgun stock.

At trial the appellant moved to suppress the seized items on the grounds that they were obtained during an illegal search and seizure. Specifically the appellant contended that the search warrant inadequately described the premises of the search.

At the suppression hearing, on September 4, 1980, the lower court learned that the search warrant described the place to be searched as:

"907 E. Lombard Street which is an eleven story high rise consisting of the first floor being a Lombard Street address with a white door with the numerals 907 above the door(,) in the City of Baltimore(.)"

The warrant, which used wording identical to the application for the warrant, listed the concealed property to be seized, namely:

"Black ski mask with yellow rings around the eyes, nose and mouth, red and blue ski mask, revolver, sawed off shot gun, tennis shoes(,) which is evidence relating to the commission of a crime pertaining to Homicide of Robert Lee Perrear and Robbery of Charley's Bar(.)"

Defense counsel contended that the search and seizure warrant was "too general" because it did not state the appellant's name, and did not direct the police officers to a specific apartment. No relevant authority was cited in support of these contentions, and defense counsel conceded that no requirement existed for the inclusion of a suspect's name on a search warrant. ¹

The lower court, seeing the warrant's affidavit, and learning that the appellant's brother served as informant for the affidavit, denied the motion to suppress. The court stated that the warrant was sufficiently specific.

In a later hearing, on September 5, 1980, the lower court asked the defense counsel if he had been fully heard in his argument on the motion to suppress. With the court's indulgence, defense counsel expanded the grounds of the motion to include a challenge to the reliability of the affidavit's informant, Melvin Thomas, the appellant's older brother. The lower court again denied the motion to suppress the seized items having read the statements attributed to Melvin Thomas.

The items seized from the residence of the Thomas family were admitted into evidence in the trial of Randolph Thomas. The shotgun stock found at the appellant's residence was proved to be the murder weapon, and the tennis shoe matched a shoeprint found at the crime scene.

On appeal Randolph Thomas contends that the lower court erred in denying his motion to suppress, and on the same basis, his motion for a new trial.

The basis for his challenge to the search and seizure is now phrased "that the warrant contained a description of the place to be searched which was so general as to fail to meet the specificity requirement of the Fourth Amendment."

The appellant does not support his contention with reference to apposite Maryland case law, but rather chooses to distinguish cases in which this Court upheld the use of items seized during the execution of search warrants at multiple-unit dwellings.

In his brief the appellant states in part:

"The decisions of this Court on this issue have turned on whether the police knew or should have known that the building was a multiple-occupancy structure. In both Delly v. State, 30 Md.App. 391, 352 A.2d 331 (1976), and Butler v. State, 19 Md.App. 601, 313 A.2d 554 (1974), this Court held that the police could reasonably have believed the relatively small buildings at issue to be single-family dwellings; the street address was therefore sufficiently specific. It is the clear implication of both cases, however, that where a conventional multiple-unit apartment building is at issue, greater specificity is required."

The appellant then distinguished between the facts of Delly and Butler and his own circumstances, and asserts:

"In the present case, the building at issue is an 11-story apartment structure which could not reasonably have been perceived by anyone as a single-family dwelling. Accordingly, the warrant constituted a 'general warrant' purporting to give the police the authority to search numerous residences which they had no probable cause to search. The motions to suppress and for a new trial should have been granted."

Having examined the record and the authority relied on by the parties to this appeal, we find that the search warrant used by the police in this case did not constitute an illegal general warrant.

Maryland law required no stricter test of the specificity of a search warrant than that the warrant, "shall name or describe, with reasonable particularity the ... building, apartment, premises (or) place .... to be searched...." Harris and Schmitt v. State, 17 Md.App. 484, 487, 302 A.2d 655 (1973), citing Md.Code Art. 27, § 551.

In Harris, supra, at 486, 302 A.2d 655, quoting from Frey v. State, 3 Md.App. 38, 46, 237 A.2d 774 (1968) we found that the purpose of a requirement for specific warrants was the prevention of "a random or blanket search in the discretion of the police in violation of the Fourth Amendment to the Federal Constitution ..." We then found that this purpose is not well-served by a strict test; Harris, supra, at 487, 302 A.2d 655, but rather we observed that:

"There is, of course, no formula which can be used to measure the particularity with which premises must be described in a search warrant, the adequacy of such description in every case necessarily depending on the facts and circumstances there present. Tucker v. State, 244 Md. 488, 496 (224 A.2d 111). A description of a place to be searched is ordinarily sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended. Steele v. United States, 267 U.S. 498 (45 S.Ct. 414, 69 L.Ed. 757); Saunders v. State, 199 Md. 568 (87 A.2d 618). In...