Briscoe v. State

¹²² MacDaniel, J., delivered the opinion of the Court. Appellant, John Francis Briscoe, was tried by a jury in the Circuit Court for Charles County under an indictment charging him with two counts of rape, one count each of false imprisonment, larceny and other related offenses. On January 22, 1976, he was convicted of two counts of rape as well as false imprisonment and petit larceny. On November 9, 1976, this Court filed a per curiam opinion, reversing the judgment of the Circuit Court for Charles County and remanding for a new trial.

On remand, and after proper motion, the case was removed to the Circuit Court for Prince George’s County. On June 29, 1977, a hearing was held in open court on appellant’s motion to suppress evidence and the motion was denied. The case came to trial before a jury on October 10,1977. The jury found appellant guilty on the two counts of rape, guilty of false imprisonment, and not guilty of petit larceny.

Appellant was sentenced to life imprisonment for the rape convictions and ten years for the false imprisonment conviction, to run concurrently. The victim, whom we shall simply call Mary, resided at a boarding house located at 102 Kent Avenue in La Plata, Maryland. Mary arrived home at approximately 11:00 P.M. on May 15, 1975. She fell asleep on the living room couch.

Sometime after 1:00 A.M. on May 16,1975, she awakened and found a man standing near the couch. After asking for money and receiving none, this man pointed a sawed off shotgun at her and ordered her into the kitchen. While in the kitchen, Mary was tied with articles of clothing and a gag was placed across her mouth. She was taken to a downstairs bedroom and told to lie on the bed.

She testified “he laid on top of me and raped me.” According to the victim, this man then left the bedroom and went upstairs. He returned to the bedroom and “he raped me again.” When Mary was asked whether there was penetration on each occasion, she answered “yes.” She described her assailant to the police and stated that he wore a striped sweater, dark pants, a white mask, and wore a ring on his left hand. Taken at this time from the residence was Mary’s hospital pay check, a ten dollar bill with writing on ¹²³ it, and fifty silver dollars. The assailant had on soft soled shoes with a lot of mud on them.

Dr. Schultz examined Mary later that morning and testified he found the presence of motile sperm and that she had sexual intercourse within the last twenty-four hours. Evidence was introduced by the State to show that the bedroom where the alleged rapes took place was used at times by Theresa Chase, the appellant’s sister-in-law, who worked at the boarding house, and that appellant had worked for the past several weeks at the boarding house, during the course of which he had occasion to be on the premises and in the building of the boarding house. Deputy Brown arrived at the scene of the alleged rape about an hour later with a Police bloodhound named “Lady.” After Lady was exposed to a scent, she followed a course through a muddy area winding up at a parking lot at a small shopping area about three-tenths of a mile from the scene of the alleged rape. It was at this point that Lady lost the scent completely.

Officer Nolan H. Woodland arrived at the scene of the alleged rape at approximately 3:00 a.m. Approximately five minutes later he went to the area at the shopping center where Lady had lost the scent. Officer Woodland, sometime between 1:30 and 2:30 A.M. the same day, had observed an automobile he knew to belong to Joseph Chase parked at the same spot where Lady had stopped. It was the only car parked there at that time.

Woodland had actually gone over and looked into the car to make sure that there was nothing awry when he first saw the car. Later on he passed that area again and the same car was still parked there. When Woodland returned to that area after information of the alleged rape, this car had been moved. Testimony from Gladys Briscoe, wife of appellant, Mary T. Chase, sister-in-law of appellant, and Joseph Chase, brother-in-law of appellant, revealed that appellant had in fact used the Chase car in the early morning hours that the alleged rape took place.

At approximately 6:30 A.M. on this same morning the automobile owned by Joseph Chase was parked beside Joseph Chase’s trailer. The other trailer located right ¹²⁴ near Joseph Chase’s trailer was occupied by the appellant, John Briscoe. An application for a search and seizure warrant was filed around 9:45 A.M. on May 16,1975, with an affidavit in support thereof. A search and seizure warrant was issued and executed the same morning.

The police searched the Chase automobile, the Chase trailer, and the appellant’s trailer. Certain evidence, which included the stock of a shotgun found between a mattress and spring, was seized from appellant’s trailer and introduced into evidence. Four issues are presented in this appeal: (1) Was there probable cause in the affidavit for the issuance of a search and seizure warrant? (2) Did the testimony of the complaining witness establish that a rape took place?

(3) Did the trial court properly admit testimony concerning the following of a trail by a police bloodhound? (4) Did the trial court err in not granting the missing witness instruction requested by the appellant? /. The appellant initially challenges the sufficiency of the affidavit used to establish probable cause for obtaining the search warrant. The affidavit, executed by Investigator Carl R. Steinhauser of the Charles County Sheriff’s Department, stated, inter alia, the following: “2.

At 2:38 a.m. on May 16,1975, [Mary] (w/f; DOB: 5-11-54) reported to the Charles County Sheriff’s Department that at approximately 2:00 a.m. on said date a black male aged 25-30 approx. 5' 7", 160 lbs. wearing a striped sweater & dark pants with a white mask and a ring on his left hand entered her residence at ‘Dr. Monteiro’s Boarding Home’, 102 Kent Ave., La Plata, Charles County, Maryland, awakened her and pointed a shotgun at her. She stated that he forced her into the kitchen at gunpoint and tied her hands behind her back and took her into a bedroom, placed her on a bed and raped her. She said that he then went to upper ¹²⁵ floors of the residence, broke into two rooms and removed therefrom her employee paycheck from Physicians’ Memorial Hospital, La Plata, Md., a ten dollar bill with writing on it and 50 silver dollars. She said that he then returned to the room where she remained tied on the bed and raped her again, whereupon he left through the back door through which he had entered. 3.

Officer Gale Willett of the Charles County Sheriff’s Department and I ([initialed] C.R.S.) received Miss [Mary] report and responded to 102 Kent Avenue, whereupon we ([initialed] C.R.S.) requested assistance of the Department’s Mobile Crime Laboratory and bloodhound, Officer William D. Brown of the Department has advised me today that he responded with the bloodhound and that the bloodhound was exposed to the scent of a striped sweater matching the description provided by Miss [Mary] which had been recovered from the area of the rear of the residence. Officer Brown reported that the bloodhound thereupon followed a course leading generally eastward from the rear door of the residence, through a muddy area and a housing development, around in a southwesterly direction toward Charles Street in La Plata to a parking area off of Kent Avenue behind the County Drug Store, which is approximately 3 doors south of Miss [Mary’s] residence on Kent Avenue and within sight of it. Officer John Wood of the Crime Laboratory advised that he responded to the residence and discerned within it mud on the floor which was compatible in appearance to that observed in the area through which Officer Brown and the bloodhound had walked. 4. Officer Nolan H. Woodland of the La Plata Town Police advised me today that as early as 1:30 a.m. and as late as 2:30 a.m. this date he observed a 1965 Mercury Comet 2-dr sedan, light bluish-green ¹²⁶ in color with primer paint on both rear quarter panels bearing Md. reg.

ARH-185 parked behind the referenced County Drug Store in the area at which the bloodhound’s foray ended. A check with the Maryland Motor Vehicle Administration has revealed such a vehicle to be registered to Joseph Edmond Chase of Rt 225 General Delivery, La Plata, Md. Officer Woodland has advised that he is personally acquainted with said Chase and knows him to occupy an older dark green house trailer on Dump Rd., La Plata, .3 mi from that road’s intersection with Md. Rt. 225; Officer Woodland further indicated that he knows the green and silver trailer immediately to the north of the Chase trailer to be occupied by John Francis Briscoe. At 6:30 a.m. today I personally observed the referenced vehicle parked in front of the trailer said to be occupied by Chase; I directed that surveillance of the trailers and cars be maintained and at 7:30 a.m. was advised by Officer W.S. Hutchinson that the surveillance team had stopped the vehicle as it emerged from Dump Rd. and found it to be occupied by Joseph E. Chase. 5. Arturo Monteiro, M.D. advised me this date that at approximately 3:00 a.m. a Mary T. Chase entered Physicians’ Memorial Hospital at La Plata in the company of Gladys Chase, a/k/a Gladys Briscoe.

Dr. Monteiro indicated that he had inquired of Gladys Briscoe as to the whereabouts of her husband, John Francis Briscoe, during the course of the morning and that she stated that she and he had attended a dance at Pomonkey at the conclusion of which John Francis Briscoe had left in the company of ‘Joe’; Dr. Monteiro further said that Mrs. Briscoe told him that John Francis Briscoe had arrived home in the vicinity of 2:30 a.m. Dr. Monteiro further advised that he is the proprietor of the Boarding House at 102 Kent Avenue and that the referenced John Francis ¹²⁷ Briscoe has been employed by him for the past several weeks during the course of which Briscoe had occasion to be on the premises of and within the building of the Boarding House. 6. That at 7:45 a.m. today, during the course of preparation of this Affidavit Joseph E. Chase appeared at my office and advised that he is the owner of the referenced Mercury automobile and that, while he had attended no dance during the course of the evening, John Francis Briscoe, his neighbor, had requested permission to use the car and that he, Chase had given Briscoe the keys to it. Mr. Chase told me that he assumes Briscoe did in fact use the car inasmuch as he noticed that when he approached it this morning it appeared to have been moved from the location in which he had parked it.

Mr. Chase denied having accompanied Briscoe to a dance during the course of the evening. 7. WHEREUPON your affiant believes that there is reason to expect that the referenced automobile and trailers contain material of an evidentiary value in the investigation of this case, particularly items of clothing, the reportedly stolen paycheck and silver dollars, as well as mud droppings suitable for comparison with those found at the crime scene.” (Emphasis added.) On the basis of the above facts, the judge concluded that there was probable cause to search Joseph Chase’s car and residence and the residence of the appellant. The appellant argues that the use of the bloodhound to detect the trail of a perpetrator of a crime is equivalent to the use of an informer, and that the use of the affidavit is totally defective for the reason that it fails to specify the facts upon which the affiant concluded that the information from the dog was reliable. An affidavit in support of an application for a search warrant may be based on hearsay so long as there is a ¹²⁸ substantial basis for crediting the hearsay.

Rugendorf v. U. S., 376 U. S. 528 , 84 S. Ct. 825 , 11 L.Ed.2d 887 (1964). The judge must be informed (1) of the underlying facts upon which the informer has based his conclusion, and (2) the circumstances from which the affiant has concluded that the informant was credible or his information reliable. Spinelli v. U.S., 393 U. S. 410 , 89 S. Ct. 584 , 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U. S. 108 , 84 S. Ct. 1509 , 12 L.Ed.2d 723 (1964). The difficulty in the present case is not with the first prong of the above test but with the second prong, the “veracity” prong.

The veracity prong, as pointed out in Thompson v. State, 16 Md. App. 560 , 298 A. 2d 458 (1973) is “significantly phrased in the disjunctive.” The two questions therefore are whether the affidavit sufficiently spelled out the bloodhound’s