Waine v. State

• Decision Date: 09 September 1977
• Docket Number: No. 1106,1106
• Citation: 37 Md.App. 222,377 A.2d 509
• Parties: Peter Sutro WAINE a/k/a Charles F. Adams v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 222

37 Md.App. 222

377 A.2d 509

Peter Sutro WAINE a/k/a Charles F. Adams v. STATE of Maryland.

No. 1106.

Court of Special Appeals of Maryland.

Sept. 9, 1977.

Harold Buchman, Assigned Public Defender, Baltimore, with whom was Barbara B. Mello, Assigned Public Defender, Baltimore, on the brief, for appellant.

Kathleen M. Sweeney, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Edwin H. W. Harlan, Jr., State's Atty. for Harford County, Peter C. Cobb, and Gerard S. Comen, Asst. State's Attys., for Harford County, Bel Air, on the brief, for appellee.

Argued before MORTON, THOMPSON and LISS, JJ.

THOMPSON, Judge.

The appellant, Peter Sutro Waine, was convicted by a jury in the Circuit Court for Harford County, Judge Albert P. Close presiding, of two counts of first degree murder and larceny of an automobile. He was sentenced to two consecutive terms of life imprisonment and one consecutive term of fourteen years. On this appeal the following questions are raised:

"1. Did the trial court abuse its discretion in denying appellant's suggestion of removal based on prejudicial pretrial publicity?

"2. Should the court have ordered suppression of the fruits of a series of searches and seizures on the ground that the warrants authorizing them were issued on the basis of affidavits of probable cause derived from an illegal inventory search?

"3. Did the court err in permitting the introduction, in the State's case in chief, of testimony concerning prior misconduct of the defendant, which did not result in a criminal conviction?

"4. Did the court err in refusing to permit a psychiatrist called by the defense to testify concerning the unlikelihood of appellant's committing an act of violence?

"5. Was the evidence sufficient to justify submitting the larceny count to the jury?"

On March 24, 1975, the appellant was arrested in Douglas, Cochise County, Arizona, when it was determined there was an outstanding warrant against him in Maricopa County, Arizona. It was subsequently learned additional warrants were outstanding in Massachusetts. The automobile in which the appellant was stopped was registered in Maryland to Marilyn Smith. The Maryland police were called and requested to investigate whether the appellant was driving the automobile with the permission of the owner. Several pieces of identification and false identification were seized, and a statement was taken by the Cochise County Police. On March 31, 1975, the appellant was transported to Maricopa County, Arizona.

The bodies of Lyle W. Ager and Marilyn Smith were discovered on April 14, 1975, in their house in Abingdon, Maryland, bludgeoned to death by numerous blows with a blunt instrument. The police made this discovery after receiving information from a passing cyclist that the passerby thought he had observed Miss Smith's body through the window of the house. It was learned that the victims were last seen in the presence of the appellant and had been dead for a considerable time. A warrant was obtained for the appellant's arrest. The next day, the Maryland State Police contacted the Maricopa County, Arizona Sheriff's Department. The Sheriff's Department in Cochise County, Arizona was also contacted and informed of the homicide investigation that was in progress.

The appellant testified that he had visited the victims in early March, 1975. He denied any knowledge of the homicides and stated that he had been given permission by the victims to use the automobile. He described himself as a "total passivist" who was incapable of violence. The appellant's brother and a psychiatrist were called to the stand to confirm the appellant's testimony.

Additional facts will be supplied in the discussions of the several contentions.

I. Removal

Prior to trial the appellant filed a suggestion for removal based on prejudicial pretrial publicity. In support of this he introduced numerous newspaper articles from the local papers as well as an article from The Sun, a Baltimore newspaper. These articles appeared in the newspapers substantially within a three month period. Arguments on the suggestion for removal were first heard more than five months after the final article had appeared. The trial judge found that there had been very little publicity in the seven months prior to trial. He denied the suggestion for removal but agreed to pursue the matter on voir dire examination.

Five panels of prospective jurors were examined on voir dire both as a group and individually. As a group the jurors were asked the standard questions such as whether they had ever had any contact with the appellant, his family, or any of the State's witnesses, and whether that would in any way affect the juror's ability to render a fair and impartial verdict. Those jurors who were not excused during this questioning were then examined individually. Each juror was asked if he had formed an opinion. Each juror was also asked if he had "any knowledge of the facts and circumstances of the case, either through word of mouth or by newspaper, radio, or television." Defense counsel was then allowed to examine the individual juror. When it was discovered that at least one juror had read an article which appeared in the Baltimore News American after the trial had commenced, additional voir dire was granted and the jurors were instructed not to read the newspaper accounts of the trial.

While at least two-thirds of the five panels of prospective jurors stated that they had heard of the case in the news media prior to the voir dire examination, the majority of these stated that their exposure was limited to an article or two many months prior which had simply stated that the crime had occurred. Any juror who revealed that that exposure might impair his ability to render a fair and impartial verdict was excused for cause. More than thirty jurors stated that they had no knowledge of the crime prior to their appearance in the courtroom.

Appellant cites Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), for the proposition that intense local interest, because of the sensational nature of the case, coupled with the large number of prospective jurors who had seen some newspaper article dealing with the case add up to more than a "reasonable likelihood" that the jury selection process in this case was contaminated. In Sheppard five volumes of Cleveland newspaper clippings were introduced into evidence, many of which demanded a conviction. Television and radio stations were permitted to set up broadcasting facilities inside and outside of the courthouse to give a "blow by blow" description during the proceedings. All except one juror testified at voir dire to having gained prior knowledge of the case from the news media. Every prospective juror received anonymous calls and letters as well as calls from friends regarding the impending prosecution. Inasmuch as the facts of this case do not show the "inherently prejudicial publicity which saturated the community" which was evident in Sheppard, supra, 384 U.S. at 363, 86 S.Ct. at 1522, we reject the appellant's argument that Sheppard controls the instant case.

The question of whether a criminal case ¹ should be removed to another jurisdiction is one which rests within the trial court's discretion. Maryland Constitution, Article IV, § 8; Maryland Rules 542 a 1 and 738 b. The burden is on the appellant to show that he had been prejudiced by adverse publicity and that the voir dire examination of the prospective jurors, available to him, would not be adequate to assure him a fair and impartial trial. Sizemore v. State, 5 Md.App. 507, 511, 248 A.2d 417 (1968); Mason v. State, 12 Md.App. 655, 678, 280 A.2d 753 (1971), cert. denied, 263 Md. 717. As a general rule to meet this burden the appellant must show: "(1) that the newspaper article is prejudicial (2) that a juror has read the prejudicial newspaper article, and (3) that the jurors' decision at the trial was influenced by that newspaper article." Barber v. State, 16 Md.App. 235, 239, 295 A.2d 814, 816 (1972), quoting Presley v. State, 224 Md. 550, 555, 168 A.2d 510, cert. denied, 368 U.S. 957, 82 S.Ct. 399, 7 L.Ed.2d 389.

Newspaper disclosures including factual reports on the capture of an accused are not in themselves prejudicial. Sizemore v. State, supra, 5 Md.App. at 511, 248 A.2d 417; Bremer v. State, 18 Md.App. 291, 307 A.2d 503 (1973), cert. denied, 269 Md. 755, U.S. cert. denied, 415 U.S. 930, 94 S.Ct. 1440, 39 L.Ed.2d 488. Appellant points to several articles which erroneously stated specific other crimes of which the appellant was accused. Even if we assume that this may be prejudicial under certain circumstances, it would not be prejudicial, where as here, there was no showing that any of the jurors read these articles. Defense counsel thoroughly examined the potential jurors to determine what they had read, and no juror revealed an awareness of other charges. Indeed, a jury was available to the appellant which had no prior knowledge of any charges.

Where there was a lengthy hiatus between the majority of the newspaper reports and the trial, we cannot assume that an unbiased trier of fact cannot be found. See Gibson, Tate & Austin v. State, 17 Md.App. 246, 259, 300 A.2d 692 (1973). If, as in Sheppard v. Maxwell, supra, publicity is so massive and widespread that it is clearly prejudicial, voir dire examination may not always provide sufficient protection, but where as here, the publicity was sporadic, not inherently prejudicial and preceded the trial by several months, a trial court does not abuse its discretion by relying on voir dire to ascertain prejudice. Kable v. State, 17 Md.App. 16, 30, 299 A.2d 493 (1973), cert. denied, 268 Md. 750. From the record we find no abuse of discretion on the part of the trial judge.

II. Search and Seizure

After the jury had been sworn, the appellant moved to suppress any evidence seized pursuant to several warrants because...