Bratt v. State

GETTY, Judge. Larry Daniel Bratt, the appellant herein, was convicted by a jury in the Circuit Court for Anne Arundel County of murdering John W. Carback and Donna Carback on December 19, 1981. Trial of the case began August 2, 1983 and concluded on August 8th, at which time appellant was sentenced by the court (Thieme, J.) to consecutive terms of life imprisonment. Appellant raises four issues for our determination, namely: 1.

Did the trial court err in denying appellant’s motion to suppress evidence? 2. Did the trial court err in admitting evidence of another alleged crime by appellant and the alleged complicity in that crime by his mother? 3. Did the trial court err in permitting cross-examination of appellant’s mother beyond the scope of her direct testimony? 4. Whether appellant was denied the effective assistance of counsel?

We decline to address the fourth issue other than to state that it is more appropriately addressed in a post conviction proceeding where defense counsel has an opportunity to explain the challenged acts or omissions. See Johnson v. State, 292 Md. 405 , 439 A.2d 542 (1982). Facts The bodies of John Carback and his wife Donna were discovered at their home in Lake Shore on Monday, December 21, 1981. Each of the victims had been shot three times and Donna sustained a broken jaw and stab wounds in addition to the gunshots.

None of the sophisticated alarm ⁵³⁹ systems in the home had been activated. The police recovered a number of .45 caliber slugs at the scene plus fourteen guns, a small quantity of cocaine and 48 pounds of marijuana. Fingerprints on a beer can at the scene were identified as belonging to one Tony Raspa who was separately indicted and acquitted of the Carback murders. Appellant has not raised any argument as to the sufficiency of the evidence upon which he was convicted.

We shall, therefore, relate other facts as they pertain to the issues raised. Search of the Townhouse In the course of their investigation the police focused upon a townhouse in Glen Burnie formerly occupied by appellant. On August 26, 1982, two police officers went to the premises and obtained the consent of the tenant, Jeanine Diehl, to conduct a search of the premises. Diehl had rented the apartment and furnishings from the owner, Mike Lohr, five months earlier.

Initially, the police were interested in examining several bullet holes in the walls. Upon learning that several cardboard boxes in the basement had been left there by appellant, the police examined the contents of the boxes and recovered a receipt for a MAC-10 machine gun appellant had purchased in Georgia, a picture of John Carback and a photograph of Thomas Raspa. The basement consisted of one large open room that was not sealed off or locked in any manner. Diehl received a phone call from appellant approximately one month before the police arrived.

Appellant advised her he was coming to get the furniture, but did not do so. No mention was made as to the boxes in the basement. The furniture was also claimed by appellant's girl friend, Cynell Crabtree, who advised Diehl several days after Diehl rented the apartment that appellant had given her the furniture. The third claimant was the landlord, Lohr, who told Diehl that he bought the furniture from appellant. ⁵⁴⁰ Crabtree testified that she lived with appellant in the townhouse from April, 1981, until January, 1982, when he left for Georgia on a business trip.

He never returned and Crabtree left the premises two months later. The next tenant was Diehl. Appellant contends that the warrantless search of the cardboard boxes cannot be justified under the theory of abandonment or consent. We disagree.

Diehl had exclusive control over the premises that she rented from Lohr. Under these circumstances, she had full authority to consent to the search of the entire premises. In Tate and Hall v. State, 32 Md.App. 613 , 363 A.2d 622 (1976) , two defendants were tried for rape and kidnapping. The mother of one of the defendants consented to the search of her son’s bedroom from which the police recovered a wallet belonging to one of the victims.

In upholding the search we said that the critical question was whether the defendant’s mother “... possessed common authority over or other sufficient relationship to the premises as to authorize her consent.” Accord, Jones v. State, 13 Md.App. 309 , 283 A.2d 184 (1971), cert. denied, 264 Md. 749 (1972). We hold that Diehl’s control over the entire premises warranted her consent to search unsealed boxes in the open basement. Appellant left the premises and the state almost five months before the search. That he had no intention to return is evident from his girl friend’s testimony that he failed to return from a business trip to Georgia and, after a two month interval, she left the townhouse and moved to California.

Appellant’s phone call concerning the furniture does not establish any expectation of privacy as to the boxes which he did not mention. “Abandoned property does not fall within that category in which one has a legitimate expectation of privacy to bring it within the protection of the Fourth Amendment.” Duncan & Smith v. State, 281 Md. 247 , 378 A.2d 1108 (1977) ; accord, Everhart v. State, 274 Md. 459 , 337 A.2d ⁵⁴¹ 100 (1975). Whether property is abandoned is a question of fact based upon the act and intent. Everhart, supra. We hold that the trial court did not err in deciding that appellant abandoned the property left in the basement for five months after his departure.

M10 Automatic Pistol Appellant was enrolled in a school for bodyguards in Georgia during 1980. At that time he purchased an Ingram M10 .45 caliber semi-automatic pistol, serial no. SAP45374. Several months after the two murders, appellant’s employer, Bernard Dervan, became concerned over appellant’s possession of this illegal weapon.

His concern mounted following a heated argument between appellant and co-employee John Pastis, during which each threatened to kill the other. Appellant was advised to take a trip to Florida and Dervan removed the gun and three silencers from the apartment the two shared in Atlanta. Dervan’s brother told him that he had been in contact with a federal officer who assured him that if the gun was turned in no charges would be filed against anyone. Acting upon this advice, Dervan gave the gun to his brother and Pastis and they turned it in to the federal agents.

The gun was ultimately acquired by the Anne Arundel County Police. At trial, an agent of the FBI testified that he compared the projectiles recovered from the crime scene with test firings he performed using each of the silencers. His conclusion was that two of the projectiles recovered at the crime scene came from the gun and one of the silencers to the exclusion of any other gun or silencer in the world. Appellant argues that Dervan believed Pastis to be a federal agent and, therefore, the governmental action was sufficient to invoke the exclusionary rule as to evidence seized in violation of the Fourth Amendment.

We see it differently. In Herbert v. State, 10 Md.App. 279 , 269 A.2d 430 (1970), we said: ⁵⁴² “We believe that by history, judicial rule and application, the exclusionary rule as to evidence seized in violation of the Fourth Amendment comes into play only when the evidence is obtained by governmental action. Whatever wrong is done by the act of one individual in taking the property of another, it is no invasion of the security afforded by the Fourth Amendment against unreasonable searches and seizures. Burdeau v. McDowell, ( 256 U.S. 465 ) at 475 [ 41 S.Ct. 574 at 65 L.Ed. 1048 ].

When an individual obtains incriminatory matter from an accused, no matter how improperly, and such matter comes into the possession of the government without a violation of the accused’s rights by governmental authority, the exclusionary rule does not prohibit its use at trial. Each case must be judged on its own particular facts as to whether or not governmental action played such a part in the seizure of challenged evidence so as to invoke the Fourth Amendment.” Accord, Bowers v. State, 298 Md. 115 , 468 A.2d 101 (1983); Burdeau v. McDowell, 256 U.S. 465 , 41 S.Ct. 574 , 65 L.Ed.2d 1084 (1921). The court made the following findings of fact regarding Bernard Dervan’s testimony: “throughout the course of Mr. Dervan’s testimony, he repeatedly stated his concern for the Defendant’s well-being, and that concern prompted him to act as he did. Mr. Dervan’s testimony indicated that he had, at best, tenuous relations with a man [Pastis] about whose identity he was unsure.

The Court finds that, although this man may have in fact been a government agent, his shadowy presence did not affect Mr. Dervan’s decision to seize Defendant’s gun, nor did this man direct Mr. Dervan to seize the gun, both of which occurred prior to the entry of any government agent. Rather, the Court finds that Mr. Dervan was acting as a private citizen in an effort to protect his friend, thus the seizure was neither the result ⁵⁴³ of governmental intrusion nor