Wiggins v. State

• Decision Date: 01 September 1987
• Docket Number: No. 1676,1676
• Citation: 544 A.2d 8,76 Md.App. 188
• Parties: Bernard WIGGINS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 188

76 Md.App. 188

544 A.2d 8

Bernard WIGGINS v. STATE of Maryland.

No. 1676, Sept. Term, 1987.

Court of Special Appeals of Maryland.

July 15, 1988.

Certiorari Granted Oct. 26, 1988.

Jose Felipe Anderson and George E. Burns, Jr., Asst. Public Defenders (Alan H. Murrell, Public Defender, on the brief) Baltimore, for appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Alexander Williams, Jr., State's Atty., and A. Thomas Krehely, Asst. State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Argued before WILNER and BISHOP, JJ., and JAMES S. GETTY, Associate Judge of the Court of Special Appeals (retired), Specially Assigned, JJ.

BISHOP, Judge.

Bernard Wiggins was convicted by a jury in the Circuit Court for Prince George's County of first degree felony murder, robbery with a deadly weapon, and theft over $300.00. He was sentenced to life imprisonment on the felony murder charge and given a twenty year consecutive sentence for the robbery with a deadly weapon charge. ¹ On appeal he asks:

I. Did the trial court err when it denied Appellant's motion to suppress?

II. Did the trial court err when it permitted Appellant to be escorted before the jury by Court Security officers wearing plastic gloves?

III. Was the evidence sufficient to sustain Appellant's convictions?

The first witness who testified at appellant's trial was James Smith, the maintenance supervisor of the complex where the apartment of the victim, Bjorn Haug, was located. Smith testified that on the morning of March 30, 1987, he received a call from Haug's employer requesting that he obtain a passkey and check on Haug since it was highly unusual for him to miss work. Smith testified that after obtaining permission to enter the apartment from the property's management company, he knocked on Haug's door and received no response. Not finding Haug in either the tenants' laundry room or the storage area, he unlocked the door to Haug's apartment, entered the apartment, and searched for Haug without success. While in Haug's apartment, he noticed it was uncharacteristically out of order and described it as being in "complete disarray."

After he searched Haug's apartment, Smith returned to the maintenance office and telephoned the property management company to report what he had seen. The property manager then called the police, who met Smith at Haug's apartment.

Corporal Paul Noblitt of the Prince George's County Police Department testified that he was the lead investigator of a homicide that took place at the F.L. Watkins Construction Company in Seat Pleasant, Maryland. Noblitt told the jury that on March 30, 1987, when he arrived at the scene, he "found the body of a white male, approximately 48 years of age ... adjacent to a dumpster ... with a length of pipe imbedded in the victim's face." Noblitt testified that the victim was identified as Bjorn Haug.

Noblitt also stated that on April 1, 1987, the D.C. Metropolitan Police Department stopped an individual named Erik Jennifer, who was operating Haug's vehicle. On the basis of a statement obtained from Jennifer, a search warrant was obtained by the D.C. Police Department for an apartment located at 1346 Good Hope Road, which appellant shared with two other people. While in appellant's apartment, Noblitt and some officers from the D.C. Police Department searched for the items listed in the search warrant : "stero [sic] equipment consisting of a Dule [sic] Cassett [sic] Player, Reel-to-Reel Tape Player, Amplifier, Turn Table [sic], cordless phone and a Gray [sic] Naylon [sic] bag with the handles and a zipper." During the search, the police seized a telephone which matched the description in the warrant and a number of other items not specifically listed in the warrant but which were identified at trial as having belonged to appellant. ² In particular, the State introduced, over objection, two coin sets and an ashtray which were recovered from appellant's bedroom. Appellant and one of the other residents of the Good Hope Road apartment, Jacquelyn Cooper, were present when the search warrant was executed. They were taken into custody. The third resident of the apartment, Juan Gough, was taken into custody at a telephone booth near the apartment.

As a condition of their plea agreement, Cooper and Gough testified at appellant's trial. Gough stated that on the night of the murder he and Jennifer were in his bedroom watching television when appellant, Cooper, and the victim entered. He testified that appellant and the victim went into Cooper's bedroom. Later, appellant came out of the bedroom and told him and Jennifer "that he was going to knock the guy off and take the car." Gough stated that he remained in his room with Jennifer. He continued talking with Cooper, who was standing in the doorway, because he didn't pay any attention to appellant since "he jokes around sometimes about things." Gough said that he then heard glass break and that he, Jennifer and Cooper went to see what had happened. When they got to the doorway of Cooper's bedroom, they observed through the open door that the victim was "knocked out" and "bloody." According to Gough, the appellant told him, Jennifer, and Cooper that they had to "help him take the guy out of there because [they] were there at the time it happened." Gough testified that while appellant went outside to drive the victim's car to the back of the apartment, the three of them lifted the victim out of the bedroom and carried the unconscious body down to the car. They placed it in the trunk, entered the car and were driven away by appellant. Gough also stated that when appellant heard the victim "thumping" in the truck he realized that the victim had regained consciousness. They then drove to a vacant lot. When the trunk was opened the victim emerged and pleaded for mercy. Gough stated that appellant instructed them to "find something to hit the guy with" and that he, appellant and Cooper all picked up sticks. Gough admitted striking the victim once with a stick but said he immediately dropped it and ran back to the car where he was joined by Cooper and Jennifer. From his position inside the car, Gough stated that he observed appellant "swinging downward" toward the victim and then, when appellant re-entered the vehicle, the four of them returned to the Good Hope Road Apartment. After returning to the apartment, Gough said, appellant stated that he had the victim's address and suggested that they go to the victim's apartment. The four of them ransacked the victim's apartment and transported the stolen items to their Good Hope Road apartment. Cooper's testimony was, in substance, the same as Gough's. Other relevant facts will be developed in the context of addressing appellant's arguments.

I. Motion to Suppress

Appellant argues that the items seized from the Good Hope Road apartment which were not enumerated in the search warrant should have been suppressed. ³ The State responds that the items seized fall within the "plain view" doctrine and are thereby exempt from the warrant requirement. Alternatively, the State argues that even if the items should have been suppressed, their admission was harmless beyond a reasonable doubt because the evidence was merely cumulative with that which was seized under the warrant.

In Coomes v. State, 74 Md.App. 377, 387, 537 A.2d 1208 (1988), we held that "in order to justify a warrantless seizure pursuant to the plain view doctrine" the State must:

(1) demonstrate that the police had a prior valid justification for the intrusion;

(2) prove circumstances which show that the evidence seized was found inadvertently;

(3) show that the evidence was in plain view; and

(4) show that the evidence was such that the police were immediately aware of its significance.

In the case sub judice, the State has failed to present any evidence to satisfy its burden of proof regarding either inadvertence or plain view, and based on our review of the record, the State did not even make any real effort to obtain evidence for such support. Nonetheless, we do not conclude that reversal of appellant's conviction is mandated because the seized evidence, although erroneously admitted, was cumulative.

The standard of review when determining "harmless error" in criminal cases was discussed in Brooks v. State, 299 Md. 146, 156, 472 A.2d 981 (1984). There the Court said:

In Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976) we concluded

"that when an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt,that the error in no way influenced the verdict, such error cannot be deemed 'harmless' and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of--whether erroneously admitted or excluded--may have contributed to the rendition of the guilty verdict." Id. at 659, 350 A.2d 665.

We refined this standard in Ross v. State, 276 Md. 664, 350 A.2d 680 (1976) where we said:

"The essence of this test is the determination whether the cumulative effect of the properly admitted evidence so out-weighs the prejudicial nature of the evidence erroneously admitted that there is no reasonable possibility that the decision of the finder of fact would have been different had the tainted evidence been excluded." Id. at 674, 350 A.2d 680 [emphasis added in Brooks ].

299 Md. at 156, 472 A.2d 981. In view of the fact that the State did introduce evidence legitimately seized pursuant to the warrant, and in light of the testimony of appellant's accomplices Cooper and Gough, we conclude that there is "no reasonable possibility that the decision of the finder of fact would have been different had the tainted evidence been excluded."

II. The Gloves

Appellant contends that his rights of due...