Aiken v. State

FISCHER, Judge. Appellant, Kirk Douglas Aiken, was charged with first-degree rape, two counts of armed robbery, two counts of use of a handgun in commission of a felony, and related charges. A jury, sitting in the Circuit Court for Prince George’s County (Missouri, J., presiding), found him guilty of all charges. On November 18, 1993, appellant received sentences totaling life plus thirty-five years for the convictions of first-degree rape, two counts of armed robbery, and two counts of use of a handgun in commission of a felony.

The remaining convictions were merged for purposes of sentencing. QUESTIONS PRESENTED On appeal, appellant asks the following questions, which we have slightly rephrased: I. Did the lower court err in denying appellant’s motion to suppress the evidence derived from appellant’s stop and arrest?

II

Did the lower court err in denying appellant’s motion to suppress the evidence seized from his bedroom during a warrant search? ⁵⁶² III. Did the lower court err in denying appellant’s motion to suppress the photographic identification of appellant by a victim?

IV

Did the lower court abuse its discretion in denying appellant’s motion to exclude the handgun found near the scene of appellant’s arrest? V. Did the lower court abuse its discretion in allowing a medical expert to testify regarding a medical report that was discovered during trial? FACTS On October 7, 1990, at approximately 2:00 a.m., victim # 1 was returning to her home in Greenbelt. As she closed her car door and turned to walk to her town house, she was confronted by appellant.

Appellant pointed a handgun at her and threatened to shoot her. Appellant told her to lie on the ground. She lay down on her stomach between two parked cars. Appellant then demanded that she give him all her jewelry and her automatic teller machine card, and she complied with his demands.

Among the jewelry taken were a pinkie ring with the initial “B” on it, a blue topaz ring with four diamonds, a University of Maryland class ring with the initials of victim # 1 on it, and two diamond stud earrings. Appellant then searched the pants of victim # 1 for money. He fondled her breasts and pulled down the jump suit and panties she was wearing. Appellant then had forced vaginal intercourse with her.

During the entire time, appellant kept the gun pointed at her and also threatened to kill her. A car, pulling into the parking lot, distracted appellant. He left victim # 1 and confronted victim # 2, who had just parked her car and was walking to her town house. Appellant pointed the handgun at victim # 2, demanded her purse, and threatened to shoot her if she did not comply.

Victim # 2 was not carrying a purse, but handed appellant the money she had in her pockets. Appellant then demanded victim # 2’s jewelry. Victim #2 was incensed by this demand and she screamed. Appellant fled. ⁵⁶³ In the early morning hours of November 18, 1990, the Montgomery County Police stopped appellant and arrested him on a charge unrelated to this case.

In conjunction with the Metropolitan Police Department, Montgomery County Police officers searched appellant’s home in Washington, D.C. Victim # l’s pinkie ring, blue topaz ring, University of Maryland class ring, and diamond stud earrings were recovered from the top dresser drawer in appellant’s bedroom. The police conducted two photo arrays with each of the victims. Victim # 1 was not able to identify her assailant. When victim # 2 viewed the second array, she positively identified appellant as the robber.

We shall include additional facts as necessary in our discussion of the issues presented. STANDARD OF REVIEW OF SUPPRESSION HEARINGS In reviewing the denial of a motion to suppress, we consider only the record of the suppression hearing and not of the trial itself. Jackson v. State, 52 Md.App. 327 , 332 n. 5, 449 A.2d 438 , cert. denied, 294 Md. 652 (1982). We extend great deference to the fact finding of the suppression court and accept the facts as found, unless clearly erroneous.

Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Perkins v. State, 83 Md.App. 341, 346-47, 574 A.2d 356 (1990). We then make our own independent constitutional appraisal by reviewing the law and applying it to the facts of this case. Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Perkins, 83 Md.App. at 346 , 574 A.2d 356 . We apply this standard of review to Questions I, IIA, and III.

DISCUSSION L Appellant first contends that his stop and arrest, which were conducted by the Montgomery County Police Depart ⁵⁶⁴ ment, were illegal. Appellant claims that they were illegal because the Montgomery County Police had observed no suspicious activity in Maryland. The police believed that they had observed suspicious activity in the District of Columbia after they had followed appellant into the District. The police, however, had not observed a crime in the District.

Thus, appellant argues, there was no basis for the Montgomery County Police to stop him once he crossed the border back into Maryland. Without a basis to stop him, appellant alleges, all the evidence seized as a result of the stop and subsequent arrest should have been suppressed. On November 17, 1990, the Montgomery County Police set up a street surveillance in the area around the Chevy Chase Circle, which borders Montgomery County and the District of Columbia. Sergeant Willard Liston was in charge of the surveillance.

The police were looking for a suspect who they believed was involved in nine armed robberies and one homicide that had occurred in that neighborhood. Two of the armed robberies had occurred in Montgomery County. The remaining seven armed robberies and the homicide had occurred in the District. The suspect was described as a black male in his twenties, approximately six feet tall and 180 pounds with short hair, a high forehead, and a receding hairline.

The police believed that he was operating a dark-colored car, possibly a Ford Motor Company sedan. The Metropolitan Police Department of Washington, D.C. had provided the Montgomery County Police with a photograph of the suspect that was taken when the suspect used a victim’s automatic teller machine card. Sergeant Liston was parked at the corner of Chevy Chase Parkway and Connecticut Avenue in the District of Columbia and observed the traffic pattern around the Chevy Chase Circle. During this time, appellant stopped next to Sergeant Liston at the stop sign on that corner.

Sergeant Liston believed that appellant matched the description of the suspect. Appellant was driving a dark-colored General Motors sedan. Appellant then made several turns, which took him back into ⁵⁶⁵ the neighborhood he had just left. This was not the normal traffic pattern for that area.

A check of the District of Columbia license plates on the sedan revealed that the District had no record of the tag number on file. This indicated to Sergeant Liston that there was some problem with the registration or some traffic-related problem. The police then lost sight of the sedan. Later that evening, at approximately 11:50 p.m., the sedan, with appellant still driving, was observed briefly in Montgomery County before it turned back into the District of Columbia.

The Montgomery County Police followed appellant into the District where they observed him park on 29th Street. Appellant did not get out of the car. Sergeant Liston then drove by appellant and appellant pulled out behind the sergeant, but did not turn on his headlights. Sergeant Liston evaded appellant, turned off his lights, and backed into a driveway.

Within several minutes, the sergeant observed appellant driving slowly up the street with his lights out. Appellant was looking around in all directions, as if he was searching for someone. Appellant later stopped on 31st Street, turned off his lights, sat there for a few minutes, and then pulled away. During the surveillance, Officer Robert Moser observed appellant reduce his speed and drive slowly by people on the sidewalks.

Officer Moser testified at the suppression hearing that, when appellant pulled out behind Sergeant Liston and followed him with his lights out, appellant was casing people. Stated another way, Officer Moser believed that appellant was selecting a victim. He testified that this was “a similar pattern of following people, picking a proper victim ... and leaving the lights off, and hopefully the victim wouldn’t be able to detect [him].” Sergeant Liston believed that appellant’s behavior was consistent with how the nine robberies had occurred in that neighborhood, two of which had occurred in Montgomery County. The robbery victims were assaulted as they were arriving at home and getting out of their cars.

The sergeant ⁵⁶⁶ also believed that appellant matched the description of the man they were seeking. Eventually, appellant appeared to be completing a loop and was heading back to the area where the police had begun following him. Sergeant Liston instructed the other officers involved in the surveillance to stop appellant when he crossed back into Montgomery County. When appellant entered Montgomery County, an unmarked police' car displayed a flashing red light and sounded its siren in an attempt to stop appellant.

Appellant attempted to turn left, but was blocked by another unmarked police car. Appellant then veered to the right, drove the car up a front yard, and jumped from the car. Appellant fled through the residential area. The officers pursued appellant.

Officer Moser, who was involved in the chase, observed appellant reach into his waistband. As a result of what he observed, the officer believed appellant was reaching for a weapon. The police broke off the chase after they lost sight of appellant, but began to set up a search perimeter. The officers then checked the car appellant had been driving.

They found that the ignition had been “punched,” which led them to conclude that the car was stolen. As the police were beginning their search, appellant was seen running through a back yard. Officer Moser eventually found appellant hiding inside a garage. When appellant emerged from the garage, Sergeant Liston compared appellant’s appearance to the photograph of the suspect the police were seeking.

The sergeant .was certain that appellant matched the photograph. Appellant was then arrested. The arrest occurred in Montgomery County. A gun was later found near a fence that appellant had jumped in his attempt to evade the police.

In Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), the Supreme Court held that police officers may stop persons to investigate possible criminal activity. Id. at 21-22 , 88 S.Ct. at 1879-81 . These investigatory stops are ⁵⁶⁷ “justified by some objective manifestation that the person is, or is about to be, engaged in criminal activity.” United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621 (1981). A valid investigatory stop requires only that “the police have specific articulable facts which, taken together with rational inferences from those facts, create reasonable suspicion that the person has been or is about to be involved in criminal conduct.” Aguilar v. State, 88 Md.App. 276, 281 , 594 A.2d 1167 (1991).

In finding the stop valid, the lower court stated: First issue is whether or not we had the basis to even make the stop, and having decided that, we go to part number two. Seems to me, using the test again of the totality of the circumstances, I think there was a basis just to execute the stop. I’m not sure had he not run what would have happened as a result of that stop, very frankly, but he did run, so it seems to me they had the right then to pursue him, he gave them plenty of ground at that point to go ahead and make the detention. The Montgomery County Police Department clearly had reasonable suspicion to stop appellant.

It is immaterial that the police observed appellant engage in the suspicious activity in the District of Columbia. Appellant attempts to graft a geographic location requirement upon the standard for an investigatory stop enunciated in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). No such requirement has been established by the United States Supreme Court or the appellate courts of this State. Furthermore, the Montgomery County Police Department would have been remiss in their duties if they had not stopped appellant when he drove back into Maryland.

The police knew that nine robberies and one homicide had occurred in that neighborhood. Two of the robberies had taken place in Montgomery County. It is clear from the record, however, that the “neighborhood” encompassed both the District and Montgomery County without reference to jurisdictional boundaries. Appellant crossed the border between the two jurisdic ⁵⁶⁸ tions without hesitation while searching for victims within the target “neighborhood.” With part of that “neighborhood” in Montgomery County, the police were authorized to stop appellant based on what they had observed in the District of Columbia.

When the police validly attempted to stop appellant, he fled. The police then checked appellant’s car and found that the transmission had been “punched;” thus, they had probable cause to believe that the car was. stolen. Finally, when appellant emerged from the garage in which he was hiding, Sergeant Liston held the photograph of the robbery suspect next to appellant’s face. The sergeant believed that appellant was the man in the picture.

Consequently, the police had probable cause to arrest appellant. In summary, because the police had reasonable suspicion sufficient to stop appellant, which later matured into probable cause to arrest appellant, the trial court properly denied appellant’s motion to suppress all evidence seized as a result of his stop and arrest.

II

Appellant next contends that the lower court erred in failing to suppress the jewelry seized from his bedroom during a warrant search. Appellant divides his contention into two areas. First, he claims that, because the jewelry was not listed in the search warrant, it could not be seized. The argument continues that, because the jewelry could not be seized, it was not admissible.

Furthermore, appellant contends, the evidence could not be seized under the plain view doctrine. Second, appellant asserts that the jewelry was inadmissible because it was not listed on the search warrant return. Appellant contends that listing the jewelry on the search warrant return was a mandatory and not a ministerial function; thus, the jewelry should not have been admitted. We shall address each claim separately, but first we set forth the evidence presented at the hearing on appellant’s motion to suppress the evidence seized from his bedroom. ⁵⁶⁹ Lieutenant Phillip Michaels of the Metropolitan Police Department in Washington, D.C. applied for a search warrant for appellant’s home in Northeast Washington, D.C. The warrant was issued and executed the day after appellant’s arrest.

Detective Jack Toomey of the Montgomery County Police Department and Detective Susan Roberts of the Metropolitan Police Department participated in the search of appellant’s home. Specifically, these officers searched appellant’s bedroom. Detective Toomey searched appellant’s dresser and recognized a Casio digital wristwatch in the top drawer as belonging to a robbery victim. 1 The wristwatch was listed on the search warrant. Detective Susan Roberts was investigating several robberies when she participated in the search of appellant’s home.

When the detective looked in the top dresser drawer in appellant’s bedroom, she saw numerous pieces of ladies jewelry sitting together in a container. Amidst the jewelry, Detective Roberts immediately recognized two rings as having been described to her by two victims of two separate armed robberies that had occurred in the District. The detective then seized all the jewelry in the container because she suspected that it was all stolen property. The items that Detective Roberts seized were not listed on the warrant return.

Lieutenant Michaels testified at the hearing on the motion to suppress the jewelry that this was probably an oversight on his part. He explained, “I had it in the back of my mind. I don’t know why I didn’t write it down.” A. Was the jewelry properly seized, even though it was not listed in the search warrant? In certain circumstances, the police may seize evidence without a warrant, if the evidence is in plain view.

Coolidge v. New Hampshire, 403 U.S. 443, 465-71 , 91 S.Ct. 2022, 2037-41 , ⁵⁷⁰ 29 L.Ed.2d 564 (1971). Three conditions must be met before evidence may be seized under the plain view doctrine: 1. There must be a prior valid intrusion into the constitutionally protected area; 2. There must be a spotting in plain view of the item ultimately seized; and 3.

There must be probable cause to believe that the item spotted in plain view is evidence of crime. Sanford v. State, 87 Md.App. 23, 27 , 589 A.2d 74 , cert. granted, 324 Md. 90 , 595 A.2d 1077 (1991), dismissed, 325 Md. 159 , 599 A. 2d 1170 (1992). In the present case, the police were in appellant’s home, in his bedroom, and searching through his top