Wilson v. State

• Decision Date: 10 February 1970
• Docket Number: No. 201,201
• Citation: 262 A.2d 91,8 Md.App. 653
• Parties: Sullivan WILSON, Harry Valentine, Erwin Randolph Nutter v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 653

8 Md.App. 653

262 A.2d 91

Sullivan WILSON, Harry Valentine, Erwin Randolph Nutter v. STATE of Maryland.

No. 201.

Court of Special Appeals of Maryland.

Feb. 10, 1970.

Certionari Denied June 2, 1970.

[262 A.2d 93] Milton B. Allen, Baltimore, for Nutter and Wilson, with Leonard A. Briscoe, Baltimore, on brief.

Frank J. Federico, II, on brief for Valentine, John D. Hackett, Baltimore, cocounsel.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

E. Moylan, Jr., State's Atty., and Michael E. Kaminkow, Asst. State's Atty. for Baltimore City, respectively, on brief for appellee.

ORTH, Judge.

Sullivan Wilson (appellant) was charged by indictment no. 1874 with possession (1st count) and control (2nd count) on 2 March 1968 of heroin, a narcotic drug. By an addendum to the indictment he was warned that the State intended to prosecute him for those offenses as a second offender. Harry Valentine (appellant) was charged in each of indictments nos. 1871 and 1872 with possession and control of a narcotic drug on 16 March and 2 March 1968, respectively. Wilson, Valentine, Erwin Randolph Nutter (appellant), Theodore Sylvester Cook, Edward Allen and Louis O. Taylor were jointly charged by indictment no. 1878 with conspiring together and with each other to violate the Narcotics Laws of the State of Maryland on 12 February 1968 and thence continually up to and including 18 March 1968. Wilson, Valentine and Nutter were jointly tried under the indictments at a court trial in the Criminal Court of Baltimore which began on 18 February 1969. ¹ At the close of all the evidence the court granted motions for judgment of acquittal made by Valentine as to indictments nos. 1871 and 1872. Wilson was found guilty under each count charged in indictment no. 1874 and, on a consecutive trial, upon the addendum. Wilson, Valentine and Nutter were each found guilty of conspiracy under indictment no. 1878.

FACTS

In appeared from testimony adduced by the State and from a diagram admitted into evidence that the west side of Pennsylvania Avenue (the even numbered side) in The police were investigating narcotics traffic in the Pennsylvania Avenue area. From 14 February 1968 to 16 March 1968 they conducted a surveillance of the 1500 block, most of their activities centering from Smithson Street to Pitcher Street. This area was under observation each week day and occasionally on Sundays. 'Some days we may have spent ten to twelve hours. On other days, particularly on Sundays, we may spend two or three hours.' It appeared that usually surveillance would begin about noon or shortly before and continue until about 4:00 P.M. The method of surveillance was primarily by personal observiations of police officers, supplemented by photograph-still photographs and movies. The still photographs were taken by an officer concealed in a building on the east side of Pennsylvania Avenue using a camera with a telephoto lens. The movies were taken

Baltimore City begins at its intersection with Mosher Street and, running in a northerly direction, ends at its intersection with Pitcher Street. Between Mosher and Pitcher Street it is intersected by Smithson Street and at the northwest corner of Smithson Street and Pennsylvania Avenue is the Alhambra Bar. Continuing in a northerly direction there follows the Ebony Barber Shop, a store, a Shoeshine Parlor, a driveway leading to a parking lot in the rear of 1530 Pennsylvania Avenue, the Spot Bar (1530 Pennsylvania Avenue), another driveway leading to the parking lot in the rear thereof and apparently more business establishments until the intersection with Pitcher Street. The east side of the 1500 block of Pennsylvania Avenue (the odd numbered side) begins at the intersection of Mosher Street and runs north to McMechen Street which intersects the east side of Pennsylvania Avenue but does not extend to intersect the west side. The intersection of McMechen Street with the east side of Pennsylvania Avenue is south of the intersection of Pitcher Street with the west side of Pennsylvania Avenue. Smithson Street leads to an alley running along the rear of the properties facing on the west side of Pennsylvania Avenue by officers concealed in a 'surveillance vehicle' parked at the rear of the lot behind the shoe shop. Activities and occurrences observed on seven days during the period of surveillance were shown in detail by evidence adduced.

February 14, 1968

About 1:35 P.M. Valentine was observed standing in the north driveway leading to the parking lot in the rear of the Spot Bar. A woman approached him and he nodded his head. They were joined by Taylor and Allen. The woman gave Taylor something, received what appeared to be capsules from Taylor and departed. Ten still photographs showed substantially these occurrences and activities as described by an officer. They were also depicted in motion pictures taken. ²

February 16, 1968

Valentine, Wilson, Taylor, Nutter and Allen were observed. When a woman approached, Valentine nodded his head and Wilson gave her 'something' in exchange for 'something else.' Nutter met Valentine in the rear of the shoeshine parlor and something was exchanged between them-'we cannot say exactly what it was.' Nutter then went in the direction of the barbershop, Valentine remaining in the parking lot area. Valentine, Allen, Taylor and Wilson made several other 'transactions' in the area of the parking lot. 'In one situation Allen and Taylor were observed to make an exchange with a female and on another occasion (they) were observed to pull something out of Allen's trousers. It would appear he had on two pair of trousers at the time and a manila envelope * * * And he gave Taylor some of the contents of the envelope, at which time he put the remainder back in his trousers.' On other occasions Valentine climbed up on something, and reaching into a rainspout in the rear of the shoeshine parlor took a package down, and went out of sight for a few minutes, came back, and put something into the rainspout. These occurrences and activities

of 16 February were apparently shown in the movies taken.

February 21, 1968

Valentine and Taylor were on the parking lot near the Spot Bar. At various times between noon and 4:00 P.M. a person approached them, talk for a few minutes, 'and they would exchange something', whereupon the unknown person would depart.

February 24, 1968

On several occasions during the period of surveillance a person would approach one or more of Taylor, Valentine and Wilson, make an exchange of something and depart, Taylor, Valentine or Wilson remaining.

March 2, 1968

A 'source' was used by the police. The agent was searched and found to have no narcotics or money in his possession. The police gave him a $5 bill. The agent walked south on Pennsylvania Avenue to Wilson and Valentine, who were in front of the Spot Bar. Valentine nodded to Wilson. A police officer was in a car parked on Pennsylvania Avenue about 75 feet from the scene. After a short conversation between the agent and Wilson, the officer saw the agent give the money to Wilson and receive something from Wilson which Wilson took out of his pocket. The agent returned directly to the officer and gave the officer three gelatin capsules containing a powder. At the time the market price for the capsules was 'three for five' dollars. It was established by analysis that the powder in the capsules was heroin hydrochloride. The agent had been used by the police in this manner in other cases 'numerous times.' He was considered by the police to be 'quite reliable,' based on their experience with him in other cases.

March 6, 1968

The police observed Valentine 'come to the rear of the parking lot and two persons stopped and talked to Edward Allen. Harry Valentine walked in-walked south

into the Alhambra Bar. Edward Allen went in the bar and returned in a few minutes and went back to the two persons that had talked to Valentine and an exchange of something was made and the persons departed. * * * Allen remained in front of the parking lot where he was later joined by Valentine.'

March 16, 1968

The police 'observed several people come up and talk to Allen and Allen went over to his car and reached down near the front wheel, the right front wheel of the car, where he took out a brown envelope. He came back to those people. He returned to the car and reached down again towards the front wheel of the car and returned back to the front of the driveway-the parking lot.' Valentine and Cook were seated in the car during these occurrences. The police arrested Valentine, Cook, Allen and Taylor, who was also on the parking lot. Cook stated that he was the owner of the car and gave the police permission to search it. The police searched the car and 'removed from the (right) front wheel of the car a brown envelope.' It contained 7 clear gelatin capsules and 2 red gelatin capsules. It was shown upon analysis that the 7 clear capsules contained cocaine hydrochloride and the 2 red capsules contained heroin hydrochloride.

Nutter was arrested on 16 March and Wilson on 17 March. ³

WILSON AND NUTTER

Severance

The Maryland Rules of Procedure as to a joint trial relate to both offenses and defendants. The general rule is that the court may order two or more indictments to be tried together if the offenses and the defendants could have been joined in a single indictment. Rule 734. Two or more offenses may be charged in the same indictment in a separate count for each offenses. Rule 716a. Two or Valentine, Wilson and Nutter were tried together under the following indictments:

more defendants may be charged in the same indictment 'if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts...