Brock v. State

Wilner, J., delivered the opinion of the Court. In the late evening hours of March 30, 1980 (or the early morning hours of March 31) John Surderski was shot to death. Someone fired nine or ten bullets from a .22 caliber rifle into his trailer, two of which struck him in the head. On March 23,1982, a jury in the Circuit Court for Queen Anne’s County, 1 by convicting appellant of second degree murder, concluded that she was the killer.

From that verdict and the twenty-five year prison sentence imposed in consequence of it, appellant has brought this appeal complaining that: "I. The court erred in denying appellant’s motion to suppress evidence seized from the Moulton property April 1 and August 13. [and] II. The evidence was insufficient to sustain the verdict.” We shall discuss these issues in inverse order. As we find no error, however, we shall affirm. Evidentiary Suffíciency The evidence against appellant consisted essentially of the following: (1) Appellant and Surderski had at one time been friendly, but about two months before Surderski’s death — in January, 1980 — they had an altercation, during which Surderski pushed appellant into the mud and called her a pig.

Scorned, and with wounded pride, appellant became angry and, on several occasions thereafter, said that "she was going to get even,” that "[s]he was going to have revenge.” (2) Surderski was last seen alive at about 5:30 p.m. on March 30. Between 5:30 and 6:00 that afternoon, appellant borrowed Timothy Feehley’s automobile. She returned the ⁴⁵⁹ car about midnight. The next day, March 31, with Feehley’s permission, a deputy sheriff searched the car and found therein a number of .22 caliber casings.

The casings were not in the car prior to appellant’s use of it; and, according to Feehley, no one else used the car between the time appellant returned it and the search. (3) In executing the two search warrants, the sheriff found in and around the home in which appellant resided a number of .22 caliber bullets and cartridges, lead bullet fragments, and plastic boxes used to house .22 caliber bullets. (The house was owned by appellant’s father, Charles Moulton.) Evidence presented by two F.B.I. agents revealed that: (a) the bullets recovered from the Surderski trailer, the casings found in Feehley’s car, and one casing found at appellant’s home had all been fired from a .22 caliber Savage Springfield rifle; (b) "the same identical firearm” had fired the casings recovered from Feehley’s car and those found at appellant’s home; and (c) the bullets found in the Surderski trailer and a cartridge found at appellant’s home had the same general composition, and that "within reasonable scientific certainty,” they could be expected to come from the same box of cartridges. (4) Appellant was familiar with .22 caliber guns and had done some target shooting at her home.

We find this evidence, though circumstantial in nature, clearly sufficient to support the jury’s verdict. Search Warrants Appellant complains about two search warrants issued by the district court, each authorizing a search of the house in which appellant lived and the surrounding ground. One of the warrants was issued on April 1, 1980, the other on August 13, 1980. Appellant’s attack on the April 1 warrant is twofold; she argues that (1) it was not supported by an adequate showing of probable cause, and (2) it failed to indicate with requisite specificity the items sought to be seized.

The August warrant, she claims, was based in part upon the evidence ⁴⁶⁰ discovered in execution of the April warrant, which in her view serves to render it invalid as well. The April 1 warrant was based upon an application presented the same day to district court Judge William Yates by Deputy Sheriff Steven Williams. This was within a day or two after the killing and appellant’s arrest for it. The relevant part of the application was as follows: 2 "[1] That you[r] affiant has personal knowledge that the house as described above is occup[i]ed by Charles Henry Moulton and his daughter Mary Frances Brock and that Mary Frances Brock has been living at this residence for the past (5) five years. [2] That on or about 3-30-80 John Frank Surderski was shot and killed with a small caliber weapon at his residence on Smithville road, Taylors Island, Maryland. [3] That Mary Frances Brock had been seeing John Frank Surderski and was considered by the public as going together. [4] Your affiant has received information that approximately (3) three week[s] ago Mary Frances Brock and John Frank Surderski had a[n] arguement [sic] at which time Mary Frances Brock told John Frank Surderski she would get even with him. [5] Your affiant has received information that Mary Frances Brock has told others that she would get even with John Frank Surderski over the arguement [sic] they had. [6] Your affiant states that on 3-30-80 Mary Frances Brock borrowed a vehicle from Timothy Feehley of Taylors Island, Md. and when the vehicle was returned to the owner and after a consent search was performed by your affiant several [.]22 ⁴⁶¹ caliber spent cartridges w[ere] found in the vehicle, Mr. Feehley states that [the] cartridge[s] were not in the vehicle prior to it being borrowed by Mary Frances Brock but were there when returned by Mary Frances Brock. [7] Your affiant states that on 3-30-80 Mary Frances Brock was arrested and charged with the first degree murder of John Frank Surderski. 3 [8] Your affiant further states that Mary Frances Brock admitís [sic] going to the above named residence several times on 3-30-80 and that there [are] no weapons or ammunition in said residence. [9] Your affiant states that he has personally been to said residence and in plain view could see several [,]22 caliber bullets lying on a kitchen counter of said residence. [10] Your affiant states that also in plain view your affiant could see some type of weapon resting in a wall mounted weapons rack in said residence. [11] Your affiant avers that base[d] on the information received and the statements made by Mary Frances Brock and your affiant[’]s knowledge and experience, he has probable c[au]se to believe, and does believe that evidence directly and indirectly related to the shooting death of John Frank Surderski is being concealed in the residence and on the property as described above.” Appellant attacks the warrant by examining, with nearly microscopic precision, each phrase of each paragraph, arguing that each such provision for one reason or another is either non-inculpatory or unworthy of consideration.

She then reassembles the dissected application and concludes ⁴⁶² that, as the sum of many zeros is still zero, the application itself is insufficient. She argues that paragraphs 3, 4, and 5 should not have been considered at all because the information is based on hearsay and there is no indication of the source of it. Paragraph 6 she dismisses because it fails to state the precise times that appellant borrowed and returned the car. Paragraph 7, she claims, indicates only that someone thought he had probable cause to make an arrest, but does nothing to establish probable cause for the search.

Paragraph 8 alleges innocuous activity; paragraph 9 should be brushed aside because, like paragraph 6, it fails to allege when the event occurred, and also because it neglects to indicate that the bullets seen by Deputy Williams constituted evidence of a crime; and paragraph 10 is of no value because it fails to describe the weapon seen by Williams. As the Supreme Court, the Court of Appeals, and this Court have held on a number of occasions, warrant applications are not to be parsed and regarded in such a technical and critical way. They are to be read as a whole, in a commonsense manner. In United States v. Ventresca, 380 U.S. 102, 108 (1965), the Supreme Court held: "[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract.

If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” ⁴⁶³ A similar thought was expressed by the Court of Appeals in State v. Kraft, 269 Md. 583, 593 (1973), cert. den. 416 U.S. 994 (1974): "It must be remembered in reviewing nearly any affidavit that there may occur to those conducting the review matters which they would have preferred to be inserted, questions they would have liked answered, just as the average third base bleacher fan or Monday morning quarterback can advise, often in substantial detail, how a baseball or football game might have been played to better advantage.

The fact, however, that such questions arise in the mind of a reviewing court does not in and of itself mean the affidavit is defective, any more than the bleacher fan’s adverse comment upon a manager’s strategy necessarily means that the fan is right and the manager wrong, because the true test is whether it meets the standards enunciated by the Supreme Court, not whether it is drawn as the reviewing court would have preferred for it to be drawn. So long as human beings are involved, different persons will have different reactions to a given situation and often will have varying solutions to a given problem.” In Lomax v. State, 15 Md. App. 502, 509 , cert. den. 268 Md. 750 (1973), we put it this way: "Mathematical principles and propositions of pure logic maintain that the whole cannot exceed the sum of its individual parts. Yet in the law, whose life has not been logic but experience, a different result often obtains. Items of information or of evidence when assembled in combination frequently can provide a basis for a judgment or decision which could not be reached by a court confined solely to compartmentalized, disparate consideration of those items.” ⁴⁶⁴ When we examine the application in the light of these principles, we find a great deal more support for the warrant than appellant would allow.

Dorchester County, where all of these events occurred, is a rural county (1980 population 30,623), a great deal of which consists of uninhabitable wetlands. Taylors Island, where both Surderski and appellant lived, is a small community in that county (1980 population of the entire election district was 293). In such rural and sparsely populated areas, people (including law enforcement personnel) tend to know a good bit more about their neighbors than is the case in denser urban areas. It is not uncommon, moreover, for procedures to be somewhat more informal in such places.

The judge who issued the warrant, a former elected State’s Attorney for the county, is a resident judge in the county. The application as a whole indicates that appellant was not a stranger to Deputy Sheriff Williams. From paragraphs 1, 9, and 10, it is clear that he knew of her living arrangements and had been to her house, presumably as a guest; 4 from paragraph 8, it is inferrable that he had spoken to her at or after her arrest. Paragraph 6 indicates that Williams had spoken with Mr. Feehley who, it may be inferred, was a friend of appellant.

These things taken together could well and properly lead Judge Yates to conclude that Williams knew appellant and had some personal or reliable knowledge about her friends and relationships. He could therefore infer that the information recited in paragraph 3 — appellant’s relationship with Mr. Surderski — was made on personal knowledge and was reliable. ■ The information set forth in paragraphs 4 and 5 appears, from the manner stated, to be based on hearsay — what one or more other unnamed persons told the affiant. Clearly, under the principles laid down in Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969), a warrant could not be based upon that kind of infor ⁴⁶⁵ mation, which essentially may be regarded as gossip. See United States v. Karathanos, 531 F.2d 26 (2d Cir.), cert. den. 428 U.S. 910 (1976); State v. Rockhold, 243 N.W.2d 846 (Iowa, 1976).

The trial court, in ruling on appellant’s suppression motion, concluded that, because the assertions in those two paragraphs failed to pass muster under the Aguilar and Spinelli standard, they could be given no weight at all by Judge Yates — that they had to be utterly disregarded. For purposes of this appeal, we shall accept that conclusion, although we do not regard it as compelled by Briscoe v. State, 40 Md. App. 120 , cert. den. 283 Md. 730 (1978), which the court cited as authority. Paragraph 6, inferrably based upon Feehley’s remarks to Williams, is particularly incriminating. On the day that Surderski was killed with a small caliber weapon, appellant borrowed a car from Feehley, who also lived in (or on) Taylors Island.

After she returned the car, Feehley found several .22 caliber "spent cartridges” that were not there before she borrowed the vehicle. From this, and from paragraph 7, several incriminating inferences may fairly be drawn for the purpose of establishing probable cause: (1) that on the day (or evening) of the murder, appellant was in the tiny community of Taylors Island; (2) that the car was returned on the same day it was borrowed — i.e., before her arrest