Wilkins v. State, 115
Decision Date | 03 February 1971 |
Docket Number | No. 115,115 |
Citation | 11 Md.App. 113,273 A.2d 236 |
Parties | Ola Lucille WILKINS and James Cole v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
Karl G. Feissner, Hyattsville, with whom were Thomas P. Smith, William L. Kaplan, Frederick R. Joseph and Andrew E. Greenwald, Hyattsville, on the brief, for appellant.
James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County, and E. Allen Shepherd, Jr., Asst. State's Atty. for Prince George's County, on the brief, for appellee.
Argued before MORTON, ORTH and POWERS, JJ.
On 1 October 1969 James Cole and Ola Lucille Wilkins were jointly indicted by the Grand Jury for Prince George's County for violation of the narcotics laws on 18 August 1969. By an addendum to the indictment Cole was informed that the State intended to prosecute him as a subsequent offender. On 16 October each filed a written plea of not guilty and elected a jury trial. They were jointly tried under the indictment before a jury in the Circuit Court for Prince George's County on 13 January 1970. Each was convicted of the unlawful control of heroin (2nd count). Cole then elected to have the court determine whether he was a subsequent offender and upon hearing the court determined that he was. Cole was sentenced to 5 years. Wilkins was sentenced to 3 years. Her sentence was suspended and she was placed on probation for a period of 3 years under conditions specified. They appeal, filing a joint brief.
'DID THE LOWER COURT ERR IN ADMITTING INTO EVIDENCE THE SEARCH WARRANT AND AFFIDAVIT IN SUPPORT THEREOF, AS WELL AS ADMITTING INTO EVIDENCE ALL OF THE IRRELEVANT, UNRELATED AND PREJUDICIAL FACTS AND CIRCUMSTANCES CONCERNING THE POLICE SURVEILLANCE OF THE DWELLING IN QUESTION ON DAYS OTHER THAN THE DATE ON WHICH THE DEFENDANTS WERE CHARGED WITH POSSESSION AND CONTROL OF THE CAPSULE OF HEROIN?'
We made plain in Price v. State, 7 Md.App. 131, 254 A.2d 219 that the admissibility of evidence obtained by a search and seizure warrant claimed to be invalid was a matter exclusively for the trial court. In Cleveland v. State, 8 Md.App. 204, 259 A.2d 73, we affirmatively stated that when the court has found such evidence admissible the jury does not have the ultimate determination of whether or not the search and seizure was reasonable. We pointed out that Maryland Rule 729, applicable whenever property is claimed in a court to have been obtained by an unlawful search or seizure, § a, provides that if the case is being tried before a jury a hearing on a motion to suppress or objection to the introduction of such evidence shall be out of the presence of the jury, § d. If a motion to suppress is made and granted prior to trial, the evidence shall not be offered in evidence by the State at trial on the merits, § g 1. If such motion is made and denied prior to trial, the ruling is binding at trial, unless the trial judge in the exercise of his discretion grants a hearing de novo on the defendant's renewal of his motion, § g 2. But whether the trial judge accepts the pretrial ruling as binding or grants a de novo hearing on the point, if property is found by the court to have been lawfully obtained, it shall be submitted to the jury and no evidence pertaining to the legality of the seizure shall be presented to the jury. Thus, if the property was obtained under a search and seizure warrant, the affidavit on which the warrant was based does not go to the jury. 8 Md.App. at 208 and 213, 259 A.2d 73. 1 The pretrial ruling in any event is reviewable on appeal even though no further objection was made to the introduction of the evidence at trial, §§ f and g 2.
Appellants, claiming that property had been obtained by an unlawful search and seizure, moved prior to trial that evidence seized under a search and seizure warrant be suppressed because the warrant had not been issued on probable cause. The motion was heard and denied. When the indictment came on for trial the State in its opening statement told the jury without objection being made:
The State called as its first witness Detective Elmer L. Snow of the Prince George's Police Department assigned to the Vice Squad, Narcotics Section. After eliciting the officer's experience in investigating violations of the narcotics laws, the State ascertained that he had been in the vicinity of 603 60th Place, the premises allegedly occupied by appellants, on 13 August 1969. The State asked him why he was there. Appellant objected and at the bench defense counsel said: The objection was overruled and Snow said he was there to investigate a narcotic complaint. Thereafter without objection, Snow testified that on 13, 14 and 15 August 1969 he conducted a surveillance of the premises 603 60th Place. On 13 August he was there about 7 hours concealed in a telephone truck. On one occasion he saw a 'Negroe male' knock on the door 'for quite a while' and then walk around the side of the house out of the officer's sight. About 10 minutes later the same man came from the rear of the house and walked away. On another occasion he saw a 'Negroe male' whom he knew as Milton Nichols enter the rear door of the premises after knocking about 5 minutes. Later Nichols came out and walked away. On 14 August the officer saw Nichols enter the premises and later a man known to the officer as Leon 'Gummy' Spriggs went into the premises. On 15 August the officer 'contracted a confidential source * * * completely searched his person and requested that he go to 603 60th Place and purchase narcotics with money belonging to Prince George's County.' The officer saw the 'confidential source' enter the rear door of the premises and remain about 3 minutes. When he came out of the house he drove away in Snow's personal automobile. Snow followed him and about two blocks away the source stopped and gave Snow four capsules containing a white substance which proved to be heroin.
Snow was asked by the State to identify certain documents which had been marked for identification as State's Exhibit No. 1. He identified them as a return of a search warrant, a search warrant and the application for the warrant. He was the affiant. He was asked: 'And the testimony that you have given us, is that contained in part of the affidavit?' and replied: 'Yes, it is.' He was then asked: 'And there are other items, are there not, in the affidavit that you have not testified to here, is that right?' and he replied: 'Yes, sir, there is.' The State then offered the documents into evidence and appellant objected. The transcript discloses the following as occurring at a bench conference out of the hearing of the jury:
'THE COURT: What is your objection?
Mr. WESLOCK (defense counsel): This search warrant contains many references to many statements as to former convictions, one with reference to a former conviction of the defendant Cole.
MR. SHEPHERD (Assistant State's Attorney): I can't hear what he is saying because of this machine.
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