Tu v. State, 982
| Decision Date | 01 September 1992 |
| Docket Number | No. 982,982 |
| Citation | 97 Md.App. 486,631 A.2d 110 |
| Parties | Gregory Mung Sen TU v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Gary S. Offutt, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.
Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty. for Montgomery County, Rockville, on the brief), for appellee.
Submitted before WILNER, C.J., and BISHOP, and ALPERT, JJ.
This is appellant's second trip to this Court. In November, 1989, he was convicted by a jury in the Circuit Court for Montgomery County of the first degree murder of his wife, Lisa Tu, for which he was sentenced to life imprisonment. In 1990, we reversed that judgment and remanded the case for a new trial because we concluded, based on the evidence presented at a suppression hearing prior to the trial, that a briefcase containing incriminating evidence later used at the trial had been unlawfully seized from appellant's motel room in Las Vegas. Tu v. State, No. 120, Sept. Term, 1990 (filed Nov. 19, 1990).
On remand, a new suppression hearing was held with respect to the briefcase and its contents, at which new and different evidence was presented regarding the seizure. On that evidence, the court again denied the motion to suppress. Appellant was retried and the challenged evidence was admitted, but this time appellant was acquitted of first degree murder, convicted only of second degree murder, and sentenced to 30 years imprisonment. From the judgment entered on that conviction, appellant has brought this appeal asking:
"I. Did the trial court err when it held that evidence this Court previously held to be inadmissible could be admitted into evidence?
II. Did the trial court err when it permitted testimony that certain telephone numbers shown to have been called by Appellant were to prostitutes and adult entertainment agencies?
III. Did the trial court err when it admitted evidence respecting blood spattering and blowback in a case in which the State conceded there was no evidence as to how the alleged murder was committed?
IV. Did the trial court err in admitting hearsay evidence regarding the responses an investigating officer received to his inquiries about the case?
V. Did the trial court err when it refused defense counsel's request for a dual inferences instruction?"
We shall affirm.
As we indicated, appellant was charged with murdering his wife, Lisa, to whom he had been married for about 10 years. This was not a routine prosecution, for there were no witnesses to the alleged murder and Lisa's body was never found. The State posited that appellant had hidden the body in a couch on which Lisa normally slept during the summer months and then had the couch hauled to a county landfill where it was so compacted with tons of other trash that, by the time the police went to search for it, it was impossible to find.
The State attempted to prove that Lisa had been murdered by showing, first, her sudden and unexplained disappearance on July 12 or 13, 1988. It offered evidence from her friends and relatives that all communication with Lisa ceased as of then, as did financial transactions on her bank accounts and credit cards. The State also showed that blood found in the basement of her home and on the covering of the couch on which she slept was, with a high degree of probability, that of Lisa or a close relative of Lisa's. Appellant's criminal agency rested on (1) evidence of appellant's financial difficulties, an insurance policy on Lisa's life under which appellant was the beneficiary, deterioration of the relationship between appellant and Lisa, and appellant's awareness that Lisa was having an affair with another man, all of which went to establish motive; (2) the presence in the house of two knives and appellant's purchase of at least one handgun, tending to show ability; (3) evidence that, on July 16, appellant arranged for a trash collector to haul away the couch notwithstanding that its condition did not warrant destruction; and (4) appellant's conduct after Lisa's disappearance.
Shortly after Lisa's disappearance, appellant told relatives that she had flown to California to visit a sick friend. That friend testified, however, that she had not been sick, that she had not invited Lisa to visit, and that Lisa did not, in fact, visit her after July 12. After appellant learned that he was a suspect, he flew to Taiwan, returned to Maryland briefly for questioning, then flew to Las Vegas, where, despite telling friends here that he was looking for Lisa, he sought employment, gambled, and made telephone calls to two adult entertainment agencies and a prostitute.
The defense sought to show that Lisa had indeed gone to California. Appellant produced from United Airlines records evidence that a ticket had been issued in the name of L.L. Tu for a flight on July 14, 1988, from Dulles Airport to Los Angeles and then to San Francisco. The airline record was marked in a way indicating that the ticket had been used from Dulles to Los Angeles. Appellant also presented the testimony of a United Airlines customer service representative, Nancy Mulcahy, who recalled telling a detective in August, 1988, that she saw a woman resembling Lisa board an aircraft for Los Angeles in mid-July of that year. The State responded with testimony from the three passengers on the July 14 flight whose seats were adjacent to the seat to which the ticket related that the seat had been empty. There was also other evidence that Ms. Mulcahy may have been mistaken.
Evidence presented at the first suppression hearing indicated that, following the issuance of a fugitive warrant, appellant was arrested in Las Vegas on September 10, 1988. Two Montgomery County detectives, when apprised of the arrest, flew to Las Vegas where, in cooperation with the local police, they obtained a search warrant for appellant's motel room. The warrant authorized the search for and seizure of seven categories of items. The application and the warrant were placed into evidence. In executing the warrant, the police seized the briefcase, which contained various documents and tangible items that did not fall within any of the categories enumerated in the warrant. No evidence was presented by the State as to where the briefcase was located in the motel room or as to the circumstances of its seizure.
Faced with the argument that the briefcase and at least some of its contents were not within the authority of the warrant, the State argued that seizure was permissible under the "plain view" doctrine. We rejected that argument because of the lack of any evidence to sustain it. There was nothing to show that the briefcase or its contents were, in fact, in plain view or that they were immediately recognizable as incriminating. As a result, we reversed the judgment and remanded for a new trial.
On remand, the State shifted course. Detective Turner, of the Montgomery County police department, said that he had been mistaken in his earlier testimony that the disputed items had been seized in the execution of the search warrant. He testified that he and Detective Thomson went to Las Vegas when informed of appellant's arrest, that appellant gave him permission to search the motel room, and that the warrant was obtained merely "out of an abundance of caution." In the course of the search, he discovered a laundry receipt hanging in an open closet. Turner said that he seized the item because he believed that it fell within the warrant categories. The other disputed items, he said, had not been seized from the motel room as he had earlier testified but rather had been taken from appellant by the local police at the time of his arrest. Detective Turner said he was given the various items at the Las Vegas County jail in a packet. He identified a Xerox copy of a Las Vegas Metropolitan Police Department Inmate's Property Inventory and Release and copies of other of the disputed documents. He said that the copies were made at the Las Vegas jail, and it was upon reviewing them that he realized that he had received the items from the local police and not from the motel room. 1
Detective Thomson corroborated Turner's current testimony. He said that, except for the laundry ticket, which was found in the motel room closet, the other items were in an envelope maintained by the local police at the jail. He specifically denied that they had been found in the motel room. The court obviously credited that evidence and found the disputed items, as well as the testimony and evidence derived from them, to be admissible.
Appellant makes two complaints about the court's ruling. First, he urges that he is entitled to some kind of relief because, in contravention of Md. Rule 4-252(f), the court omitted to state its findings on the record. Second, he complains that, under the "law of the case" doctrine, the court was bound by the earlier ruling of this Court that the items in question were not admissible, and that it was not permissible for the State to relitigate that issue. Neither complaint has any merit.
Md. Rule 4-252 deals with pre-trial motions, such as motions to suppress evidence. Section (f) requires that those motions ordinarily be decided prior to trial and states, in its concluding sentence, that "[i]f factual issues are involved in determining the motion, the court shall state its findings on the record." At the conclusion of the hearing, the court stated simply that "the State's position prevails in this case, and the items as requested will be received at trial." No further explanation was given, which is the point of appellant's first complaint.
The problem with appellant's position is that there really were no factual issues...
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