Wiggins v. State
| Decision Date | 01 September 1991 |
| Docket Number | No. 211,211 |
| Citation | 90 Md.App. 549,602 A.2d 212 |
| Parties | Bernard WIGGINS v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Alexander Williams, Jr., State's Atty. for Prince George's County of Upper Marlboro, on the brief), for appellee.
Argued before ALPERT, BLOOM and WENNER, JJ.
Armed with a search and seizure warrant, police officers conducted a search of an apartment that appellant, Bernard Wiggins, shared with two other persons. The introduction into evidence, at the trial of appellant for murder and other offenses, of various items that were not listed in the warrant and were not satisfactorily shown to have been properly seized under the "plain view" doctrine was one of two bases for reversal of appellant's convictions for first degree felony murder, robbery with a deadly weapon, and theft.
Wiggins v. State, 315 Md. 232, 554 A.2d 356 (1989). 1 [602 A.2d 215] At appellant's retrial, the State introduced into evidence many of those same items, demonstrating that they were properly seized under the "plain view" doctrine, thus avoiding the pitfalls of the first trial. Appealing his convictions for felony murder, robbery, and theft, 2 he argues that the trial court erred
1. In denying appellant's motion to suppress items not listed in the original search warrant.
2. When it limited appellant's cross-examination of a key State's witness.
3. When it prevented appellant's questioning a key State investigator about the absence of appellant's fingerprints on the victim's vehicle.
Perceiving no reversible error, we shall affirm.
Juan Demitrus Gough and Jacquelyn Cooper, who were charged, along with appellant, with the robbery, kidnapping, and murder of the victim and burglary of his apartment, entered into plea agreements with the State, which required them to testify against appellant. The following facts preceding the discovery of the victim's body are derived from their testimony.
Appellant, a homosexual, Gough, a homosexual, and Cooper, a lesbian, lived together in an apartment in the District of Columbia. In a pub, on the night of the murder, Bjorn After appellant, Gough, Cooper, and Jennifer left the body of Haug on the lot and went to Haug's apartment and ransacked it, they took the stolen articles to the apartment shared by appellant, Gough, and Cooper. The morning after the murder, Haug's employer telephoned the maintenance supervisor of the complex in which Haug's apartment was located. Haug had not shown up for work, which was highly unusual, and the maintenance supervisor was requested to check Haug's apartment. Haug's apartment was uncharacteristically out of order, and the police were notified. Detective Paul Noblitt was assigned to the case as lead investigator. The next day, an officer of the District of Columbia Metropolitan Police Department spotted Jennifer driving Haug's car and arrested him. On the basis of information obtained from Jennifer, the District of Columbia After the case was remanded to it pursuant to the mandate of the Court of Appeals, the circuit court conducted a new, and much more thorough, evidentiary hearing on the suppression motion.
Haug solicited Cooper, thinking she was a male. She suggested that he meet appellant. Haug went with Cooper and appellant to their apartment. Gough and his lover, Erik Jennifer, were there. Appellant and Haug went into appellant's bedroom. Appellant came out of his bedroom, and announced to his friends that he intended to "knock out" Haug, "take him and leave him somewhere, and take his car and credit cards." After appellant returned to his room, there was a loud crash, and Gough saw Haug in the bedroom "knocked out" and "bloody." Gough, Jennifer, and Cooper carried Haug, wrapped in a sheet, to his car and put him in the trunk. After driving around for a time in the victim's car, with appellant at the wheel, they heard thumping from the trunk. Appellant pulled over to a vacant lot in Prince George's County and "popped" the trunk. Haug got out of the trunk. At appellant's urging, Gough and Cooper beat Haug with sticks, but did not succeed in knocking him out. They returned to the car. Gough saw appellant "swing down" at Haug. Leaving Haug lying on the ground, appellant, Gough, Cooper, and Jennifer went to Haug's apartment and removed several items. Subsequently, Haug was found on the lot, with a length of pipe embedded in his face. He was dead
officers obtained a search warrant for the apartment occupied by appellant, Gough, and Cooper, on the authority of which they entered the apartment, searched it, and seized certain articles. Appellant's motion to suppress the evidence was denied
Appellant first contends that the Court of Appeals' reversal of appellant's first conviction, in part because of the trial court's erroneous denial of appellant's pre-trial motion to suppress the same evidence he now challenges, operated as "law of the case" with respect to this issue, and therefore the issue should not have been relitigated at appellant's second trial. 3
We believe that issue was waived by appellant. He never argued, either at the second suppression hearing or the trial that followed it, that the evidence should be suppressed because the Court of Appeals had already ruled on that issue. The only mention made of the Court of Appeals decision was at the suppression hearing when appellant cited that Court's opinion in Wiggins as authority for the proposition that an officer has no right to seize items not listed in the search warrant absent a belief that the items are fruits of a crime. Because the "law of the case"
argument was not raised at the suppression hearing or at trial, it was not preserved for appellate review. Maryland Rule 8-131(a) provides that "[o]rdinarily, the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court...." This Rule is applicable to criminal as well as civil cases. Manuel v. State, 85 Md.App. 1, 22, 581 A.2d 1287 (1990); Reed v. State, 78 Md.App. 522, 536, 554 A.2d 420 (1989); Davis v. State, 189 Md. 269, 55 A.2d 702 (1947). Accordingly, we decline to entertain that argument
Appellant further argues that Noblitt's reasons for seizing the items not listed in the warrant were insufficient to support the conclusion that any of the items seized from the apartment were clearly incriminating evidence or contraband, as required to invoke the "plain view" doctrine. Appellant objected when the items were admitted into evidence, citing the Fourth Amendment, referring to Noblitt's lack of personal knowledge, and asserting that Noblitt was merely speculating that the items had been taken from Haug's apartment. That issue was clearly preserved for our review.
The suppression hearing judge announced his ruling as follows:
"In determining whether the denial of a motion to suppress ... is correct, the appellate court looks to the record of the suppression hearing, and does not consider the record of the trial itself." Trusty v. State, 308 Md. 658, 521 A.2d 749 (1987), quoting Jackson v. State, 52 Md.App. 327, 332 n. 5, 449 A.2d 438, cert. denied, 294 Md. 652 (1982).
In considering the evidence, we give great deference to the fact-finding of the trial judge with respect to determining credibility of the witnesses, and weighing and determining first-level facts. Perkins v. State, 83 Md.App. 341, 346, 574 A.2d 356 (1990); Md.Rule 8-131(c). With respect to the ultimate, conclusive fact of whether a search or seizure was valid, however, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990). Thus, the issue before us is not whether the trial judge erred in his assessment of probable cause, but whether the police officer, at the time he first saw the items in question, had probable cause to seize those items.
In resolving that issue, we are constrained to consider the totality of the circumstances as they appeared to the seizing officer. Malcolm v. State, 314 Md. 221, 230, 550 A.2d 670 (1988). As we observed in Parker v. State, 66 Md.App. 1, 8, 502 A.2d 510 (1986):
'probable cause is not to be evaluated from a remote vantagepoint of a library, but rather from the viewpoint of a prudent and cautious police officer on the scene at the time of the arrest. The question to be answered is whether such an officer in the particular circumstances, conditioned by his observations and information, and guided by the whole of his police experience, reasonably
could have believed that [the items he seized were fruits of the crime].'
It is well settled law that the Fourth Amendment's "requirement that warrants shall particularly describe the...
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