Tobias v. State

• Decision Date: 19 October 1977
• Docket Number: No. 84,84
• Parties: Costello William TOBIAS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 605

37 Md.App. 605

378 A.2d 698

Costello William TOBIAS v. STATE of Maryland.

No. 84.

Court of Special Appeals of Maryland.

Oct. 19, 1977.

William F. Edwards, Assigned Public Defender, with whom was Carl W. Greifzu, Upper Marlboro, on the brief, for appellant.

Bruce C. Spizler, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., for Prince George's County and Robert C. Bonsib, Asst. State's Atty., for Prince George's County on the brief, for appellee.

Argued before DAVIDSON, MELVIN and WILNER, JJ.

WILNER, Judge.

The appellant, Costello William Tobias, and a codefendant, Michael Robinson, were charged in a multi-count indictment with rape, robbery with a deadly weapon, breaking and entering, larceny, carrying a dangerous weapon, and a variety of other related crimes, all arising out of incidents alleged to have occurred on March 5, 1976.

After a series of preliminary proceedings, some of which are discussed below, Michael Robinson elected to plead guilty to one count of rape and to testify against appellant. Mr. Tobias was tried before a jury in the Circuit Court for Prince George's County, and was convicted of rape, robbery with a deadly weapon, grand larcency, and carrying a dangerous weapon. He was thereupon sentenced to imprisonment for 25 years for rape, ten years for robbery with a deadly weapon, to run consecutively to the 25-year sentence, and five years for larceny, to run concurrently with the ten-year sentence. No sentence was imposed upon the conviction for carrying a dangerous weapon.

In this appeal, the appellant raises two questions:

(1) Was it reversible error for the trial court to deny appellant's motion to dismiss the indictment when the State suppressed the exculpatory photograph picked out by the prosecutrix on the day of the offense; and

(2) Was it reversible error for the trial court to admit into evidence the video tapes of the police fencing operation and allow the State to stop the tapes and make commentary on what the jury was allegedly seeing?

At about 1:00 p. m. on March 5, 1976, Mrs. Kathleen Pitts, then eight months pregnant, was at her mother's home. She was alone and had been sleeping, when she heard a knocking on the door. Although her first reaction was not to answer, the knocking was loud and persistent, and she eventually opened the door. Standing there was "a short black guy", who appeared to be confused, and asked directions to an "unemployment center". He finally asked permission to use the telephone, which Mrs. Pitts refused with the unfortunate comment that she was pregnant and alone. She asked the man to leave, and was about to shut the door, when the man pulled a knife and backed her into the hallway and up the steps. At this point, another man entered the house wearing a yellow plastic "construction" hat. This second man was described by Mrs. Pitts as taller and heavier than the first.

The two men put on what appeared to Mrs. Pitts to be white surgical gloves, then took her upstairs to her parents' bedroom and tied her hands and feet. With one of them alternately guarding her, the two men proceeded to search through the house. After twice appearing to leave and then returning, the short man took Mrs. Pitts into the bathroom, tied her to the towel rack, and raped her. Following this attack, the tall one appeared with a butcher knife, cut off her clothes with it, required her to perform fellatio, then took her into the bedroom and raped her. She was then returned to the bathroom and retied to the towel rack.

Mrs. Pitts testified that, as the two men left the house, she observed that they took with them a diaper bag "full of things they had taken from my parents' room" and a movie projector. At trial, Mrs. Pitts identified a diaper bag, two cameras, a light meter, a flash attachment, and a movie projector, which were ultimately admitted as State's exhibits. The cameras, light meter, and flash attachment Mrs. Pitts stated had been in a picnic basket in her parents' bedroom and were carried away, along with the movie projector, by the two men.

Upon being recalled to the stand, Mrs. Pitts identified the appellant as the "short man".

Phyllis Thomas, Mrs. Pitts' mother, followed her daughter to the stand and identified the cameras, light meter, flash attachment, and projector as belonging to her or her husband and having been taken from her home on March 5, 1976.

Charles Battle, a detective with the Metropolitan (D.C.) Police Department, then testified about a combined law enforcement operation known as Sting II, or "Gotcha Again". This was an undercover "fencing" operation conducted in an old warehouse in the District of Columbia, the function of which was to buy stolen merchandise in order to attract, and ultimately arrest, the thief, and then return the property to its rightful owner.

Detective Battle stated that his role in this operation was to serve as the "counter man" i.e., the person who initially inspected merchandise brought to the warehouse, negotiated price with the "seller", and finally made the purchase. Upon making a purchase, Battle would place his initials on the property and then turn it over to another officer. Battle stated that all transactions were video taped and recorded, and he brought with him, under subpoena, a tape that he said fairly and accurately represented a transaction he had with appellant and Robinson between 2:06 and 2:24 p. m. on March 5, 1976.

The video tape, with synchronized audio, was then played on a television screen before the jury. During the running of the tape, Detective Battle, upon questioning by the State's Attorney, described and commented on certain aspects of what was being shown. The relevant part of this colloquy was as follows:

"Q Detective Battle, who are the two individuals indicated in the TV screen right now?

"A Here is myself, and the gentleman here is Mr. Costello Tobias.

"Q Do you see him here in court?

"A Yes, sir.

"Q Point to him, please.

"A (Indicating). This gentleman here.

"MR. BONSIB: Indicating the defendant as one of the individuals in the picture."

After running a while longer, without further comment, the tape was stopped at the State's Attorney's request, and this conversation occurred:

"Q Over to the right there, there is what appears to be a calendar and a clock. Would you tell the jury what the function of that is?

"A The calendar and the clock is to have the day you come into work, you change the dates. That is the calendar, and the calendar camera is right behind my right shoulder, and each and every incident would come up on the screen would be the calendar date would be on it and the date and time. Also down here it has the location which is Location Number 2, which indicates that it is Operation Number 2, Incident Number which is 2196, and myself as the actor, Officer C. C. Battle.

"Q That calendar indicates March 5th is the date of this?

"A Yes, sir, that is correct.

"Q And the time according to his clock?

"A Approximately 1409 or 10 at this time."

The viewing of the tape then resumed, but was, for a second time, halted at the State's request, at which point, the record reveals:

"Q The other individual behind the diaper bag, who is that individual there?

"A That is Mike the record player, sir. That is the name he gave me the first time. Mike the record player.

"Q Do you know what his full name is now? Do you recall?

"A Not offhand. I can refer back to my notes.

"Q Would you do that, please?

"A Michael Robinson, sir."

The tape rolled again, but was again stopped and punctuated by the following:

"Q Detective, did you see what Michael Robinson, the individual identified as Michael Robinson, put up on the counter at that point? Did it appear to be what?

"I am sorry, that's Tobias that put it up there.

"A Some type of a hat or bowl of something.

"Q Do you recall what color it was, or hard or soft substance or plastic, metal, do you recall?

"A Not really, I don't. I couldn't say."

The tape was then played to completion, following which Detective Battle identified Mrs. Pitts' diaper bag as "the bag that some of the property was brought into the hole by the two subjects that came in on the film you just saw." He then proceeded to identify the two cameras, attachments, and projector as having been brought in by Tobias and Robinson and purchased from them by Battle.

The State then placed in the record, at the bench and outside the hearing of the jury, the following general description of what the tape showed:

". . . what the jury observed on that video tape was a video tape showing Detective Battle on one side of the counter in the District of Columbia, as testified to by him, and that during the course of playing that tape the individual identified as the defendant (Tobias) walked in, followed a short time later by another individual identified as Michael Robinson, and that during the course of the playing of that tape the property which was identified by the detective was handed over to him and a sum of money was paid for those items. That would essentially be the substance of the tape that we saw and I think the record should so reflect."

I. Admissibility of the Video Tape

Appellant's second contention, which we shall deal with first, is that the court erred in admitting the video tape into evidence and allowing the State to interrupt the viewing of the tape with commentary. He complains that:

(1) He was unable to "interrogate the tapes", and thus, although Detective Battle was in court and subject to questioning, "the scope of direct examination as to the alleged purchases was limited because the tapes were used to show how the alleged sales were made", thereby also limiting the scope of his cross examination.

(2) Use of the tape was prejudicial to his defense because (i) of the notoriety of the "Sting" operation, and (ii) it showed appellant in possession of recently stolen goods, from which the jury...