Brown v. State

Gilbert, J., delivered the opinion of the Court. Charlotte Lessem, a sixty-eight year old resident of North Carolina, was stabbed to death in the ladies’ rest room of the Greyhound Bus terminal in Baltimore City on January 19, 1974. Mary Washington Brown and Tina Louise Green were charged with the murder of Lessem and the attempted robbery of her. Tina Louise Green was tried separately from the appellant, Mary Washington Brown.

She is not a party to this appeal. 1 A jury in the Criminal Court of Baltimore, presided over by Judge John R. Hargrove, found appellant to be guilty of murder in the first degree. Appellant, following her being sentenced to life imprisonment, appealed to this Court. Appellant mounts a nine-pronged attack upon the judgment of the trial court. She urges us to hold: “I. The Trial Court erred to the irreparable ⁴ prejudice of the Appellant by failing to strike the entire jury venire for the reason that they had previously been charged with respect to the law out of the presence of the Appellant.

II

The Trial Court erred to the irreparable prejudice of the Appellant by failing to suppress the introduction of the Appellant’s tennis shoe and blood stains thereon.

III

The Trial Court erred to the irreparable prejudice of the Appellant by failing to suppress the introduction of the blood seized from the person of the Appellant.

IV

The Trial Court erred to the irreparable prejudice of the Appellant by refusing to permit the Appellant to call an expert witness with respect to the photographic identification of a coat. V. The Trial Court erred to the irreparable prejudice of the Appellant, by permitting Tina Green to testify for the State.

VI

The Trial Court erred to the irreparable prejudice of the Appellant by permitting the State to enter the State’s Exhibits. No. ■ 3, 4, 7, 9,10A, 10B, 14,15 and 16. .

VII

The Trial' Court erred to the irreparable prejudice of the Appellant by striking the entire testimony of the character witness of the Appellant.

VIII

The Trial Court erred to the irreparable prejudice of the Appellant by erroneously placing the burden on the Defendant to overcome the presumption of second degree murder in a wrongful death case.

IX

The Trial Court erred to the irreparable prejudice of the Appellant by failing to direct a verdict in favor of the Appellánt at ⁵ the conclusion of the State’s case in chief and at the conclusion of the entire case.” We shall discuss each of appellant’s contentions in the order in which she has advanced them. I. The Venire The practice before the Supreme Bench of Baltimore City is to assemble newly called jurors in an orientation program where the jurors are informed by a judge of the meaning of certain words. To some, the words may be part of an entirely new vocabulary. They are told the definition of such terms as “probable cause”, “beyond a reasonable doubt”, and “preponderance of the evidence.” The judge who relates the meaning of those terms to the jurors does not advise the jurors how to apply them to particular or specific facts.

When the instant case was called to trial, appellant’s counsel moved to disqualify the entire prospective jury panel on the basis that they had been “charged” by a judge of the Supreme Bench at the orientation as to legal principles applicable in criminal trials. The appellant contended that the “charging” of the venire was a “critical stage” of the proceeding, thus requiring the appellant’s presence. Appellant reasons that inasmuch as she was not present during the “charge” and was not afforded an opportunity to submit requested instructions or interpose objections to the “charge”, the entire venire must be disqualified. She apparently believes that she should be tried before a jury that has not been “tainted” by the orientation program.

Appellant’s counsel argued to Judge Hargrove: “. . . I ... repeat again, . . . [that] she will be judged by a jury that was instructed as to the law generally, all about it, in criminal cases as well as in civil cases, that the jury that she never even heard instructions to, had no opportunity to object to the instructions to the jury that were given by a judge sitting on the bench, a judge not even ⁶ presiding in this trial, nor did she have á chance to put in her own prayers:”- ' • The first hurdle that appellant must clear ifFordér to reach the substance of her assault on the Supreme Bench’s orientation procedure is whether that educational program is a “critical stage” of the criminal process. We note that all prospective jurors in the courts of the Supreme Bench 2 are apprised at orientation of some of the terms more frequently employed by counsel and judgfes. The orientation seems' to be a verbalizing of the content' of' the booklet prepared by the Circuit Administrative Judges of Maryland, entitled, “A Handbook for Petit Jurors” and presumably in use throughout the State, with the addition of some other terms and local practices.

The orientation is not intended ás a substitute for the advisory instructions usually given to' a jury at the close of the evidence in a criminal case. The orientation of the entire panel of jurors that is used throughout the courts of Baltimore City cannot be miscast by appellant as a “critical stage”-'of" a criminal prosecution. ' ■ - We know of ho statute,. rule of court, decision of the Supreme Court, the Court of Appeals of Maryland or of this Court that requires the presence' of the accused when an entire panel of prospective jurors is being advised of its duties, and responsibilities. Notwithstanding. appellant’s laborious efforts to analogize the case now before us to . . a lineup . identification after formal charges . . .” whereby “. .. a defendant. is permitted the presence of an attorney during a pre-trial, lineup even though the capacity of the attorney is limited solely' to that of being an observer,” we fail to see the analogy'. ' ': Implicitly, appellant opts for a system whereby a jury which heard one criminal case would thereafter be excluded from, further jury service unless all. other defendants awaiting trial before the same panel of jurors-were present ⁷ during the first trial in order that they might interpose exceptions to the judge’s advisory instructions and perhaps request additional instructions. Such a system is absolutely unworkable.

Alternatively, what appellant urges upon us would ultimately lead to a juror’s serving in one criminal case and thereafter be forever disqualified. Appellant’s definition of “critical stage”, requiring the presence of the accused, would, if adopted by the courts, create absolute chaos in the orderly administration of justice. We think appellant’s contention ingenuous and devoid of merit. II Suppression of the Shoe The transcript of the suppression hearing reveals that Detective Walter T. Egger, then of the Homicide Division of the Baltimore City Police Department, was called to the scene of the slaying.

The detective saw that there was a partial footprint in a pool of blood on the ladies’ rest room floor and what appeared to be blood smeared on a stairway wall and handrail, tie also observed that there were “. . . droplets of blood [on the floor] leading across the open hallway there in the bus station to the front door area.” He tracked the blood droplets to the 600 block of Howard Street, where, at the curb, the drops ceased to appear. A short time later he was called to the emergency room of Maryland General Hospital where he observed the appellant and another young woman. 3 Detective Egger identified himself as a police officer, made a visual examination for blood stains on the clothing the two young women were wearing, and asked them to hold up their feet so that he could examine their shoe soles. The white tennis shoes worn by appellant were manufactured with “an insert” in the sole where there was a label, and blood was seen in the insert. The detective seized the shoes and informed appellant “. . . that she was going to be taken to the Police Department Headquarters, the Homicide Squad.” ⁸ Prior to the time that Detective Egger went to the hospital emergency room, he had obtained, at the scene of the crime, a description of two suspects.

He testified: “From my notes that I made on the scene I have ‘Suspects: Negro female, sixteen, checkfered] brown pants; Negro female, sixteen, yellow top, white jacket, fat.’ ” Another description, slightly different, was received at the bus depot by Officer Robert L. Scott: “Female Negro, fifteen to sixteen, five foot three, a hundred thirty pounds, brown checkered pants and white coat. The other female: Negro female, fifteen to sixteen, five foot three, a hundred and thirty pounds, had on green pants. . . .” The description Officer Scott received was broadcast over the police radio network. Detective Egger readily admitted that appellant did not fit the height and weight portion of the broadcast description. He did state, however, that appellant “. . . fit the description that I [he] had received . ..” at the scene of the slaying.

Egger said that appellant was wearing “... a white jacket and a yellow blouse.” The other “suspect” was wearing checkered pants. The thrust of appellant’s argument in the trial court and here is that Detective Egger lacked probable cause to seize the blood stained tennis shoe. We do not see it that way. The Supreme Court in Brinegar v. United States, 338 U. S. 160 , 69 S. Ct. 1302 , 93 L. Ed. 1879 (1949) stated: “In dealing with the probable cause, however, as the very name implies, we deal v/ith probabilities.

These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.” 338 U. S. at 175 . We have defined probable cause as a non-technical conception of a reasonable ground for belief of guilt requiring less evidence than would justify conviction, but ⁹ more evidence than mere suspicion. Cuffia v. State, 14 Md. App. 521 , 287 A. 2d 319 (1972); Cleveland v. State, 12 Md. App. 712 , 280 A. 2d 520 (1971); Cleveland v. State, 8 Md. App. 204 , 259 A. 2d 73 (1969). See also Spinelli v. United States, 393 U. S. 410 , 89 S. Ct. 584 , 21 L.Ed.2d 637 (1969); Carroll v. United States, 267 U. S. 132 , 45 S. Ct. 280 , 69 L. Ed. 543 , 39 A.L.R. 790 (1925); Edwardsen v. State, 243 Md. 131 , 220 A. 2d 547 (1966).

The facts known to Detective Egger were that a woman had been slain, two young black women were seen leaving the site of the crime, one was wearing a yellow blouse and a white jacket, the other was wearing brown checkered pants, someone had been bleeding, someone had stepped into a pool of blood and there was a possibility that blood adhered to the shoe of that person. When appellant was observed at the hospital by the detective, she “fit” the description generally, if not specifically, of one of the two suspects. There was blood on the sole of her shoe. We think that knowledge on the part of Detective Egger to amount to more than mere suspicion even if we assume arguendo that it did not rise to the level of evidence that is sufficient to sustain a conviction.

A warrantless arrest under Md. Ann. Code art. 27, § 594B (c) was justified by the facts known to the detective. Of course, once probable cause for the arrest was established the shoe was properly seized as evidence of the crime. Ill Seizure of Blood Sample Pusuant to a seizure warrant issued by Judge James W. Murphy of the Supreme Bench of Baltimore City, the appellant was transported to the Maryland General Hospital where two vials of blood were extracted from her arm. See Robinson v. State, 18 Md. App. 678 , 308 A. 2d 734 (1973).

Appellant asseverates that because she was in custody and counsel had been appointed to represent her, “. . . she was entitled to be represented by counsel both at the proceeding in which the warrant was obtained and during the period of time when the blood was removed from her person.” ¹⁰ Appellant bottoms her assertion upon lack of probable cause for'the issuance of the warrant. She “reaffirms and realleges” her previous assertion' relative to lack of probable cause for'the arrest and further contends that the inclusion within the application for the warrant of the “confession” of Tina ' Green, renders the warrant defective. This is so, appellant' says/ because Tina Green’s statement is hearsay and, because Tina Green was by her own admission a “co-conspirator”, her statement “.. . should be viewed cautiously.” ■ The warrant and the procedure for withdrawing blood samples from the appellant for a comparison with blood found at the murder scene was in keeping with the strictures we set forth in Robinson v. State, supra. Appellant candidly admits that “. . . there exists no' case law [nor statute] directly on point in this State' granting the defendant a right to counsel to represent her during the application for a warrant of seizure of blood from her person and for an attorney to be present during said seizure.” There is no requirement that the accused’s attorney be present when application is made for a search warrant.

If the warrant is in fact defective, an accused has recourse, not at the time of application for the warrant, nor at the time of its execution, but rather by way of a motidn to suppress the evidence. If the warrant is defective, for want of probable cause or otherwise, the evidence seized, in most instances, will be suppressed. The same is true if the warrant, while not defective, is unlawfully executed, such as where our holding in Robinson v. State, supra, is not followed. The warrant- in this case was issued on probable cause which was demonstrated to the issuing judge by a recitation of the facts known to Detective Egger, as well- as a summary of the content of Tina Green’s statement to the police in which she told of her and appellant’s’ attempt to rob the decedent, an .ensuing struggle ■ between appellant and -the decedent, and the -stabbing of the decedent .by appellant.

Tina Green’s statement was made at the time of her arrest. That- the seizure warrant was issued on the basis o.f what appellant perceives as “hearsay” does not undercut its being ¹¹ issued on probable cause. The rules of evidence do not apply to the issuance of search and seizure warrants. IV Expert Witness Appellant maintains that she should have been allowed to call an expert witness to testify that the police mug shot, a black and white photograph, of the appellant wearing a jacket which appeared to Detective Egger to be white, was in fact not white at all.

The underlying basis for the appellant’s seeking to call the witness was in order for her to demonstrate that the appellant was not wearing a white coat and, thus, show that Detective Egger was without probable cause to effect the arrest of appellant when she was observed by him in the emergency, .room at Maryland General Hospital. The record reveals that when Detective Egger was being examined by appellant’s cdunsel at-the suppression hearing, he was asked to state what color jacket the appellant was wearing. Egger replied, “white”. The mug shot was then shown to him and he was asked the color of the jacket as depicted by the photograph.

He replied, “It was white.” The photograph was marked, at appellant’s request, for identification purposes only, and later introduced into evidence. Appellant sought permission to produce an expert witness who would testify from his examination of the photograph that the jacket worn by appellant was, in fact, not white. Judge Hargrove refused to allow the expert witness’s testimony declaring that the jacket itself was the best evidence and that the appellant possessed the right to produce other witnesses to testify that the jacket was, in fact, not white. The general rule is that the allowance or disallowance of the testimony of expert witnesses is addressed to the sound discretion of the trial court and the exercise of that discretion will not be disturbed on appeal unless such ruling is clearly erroneous or there has been a clear abuse of discretion.

Spence v. Wiles, 255 Md. 98 , 257 A. 2d 164 (1969); Dobson v. Mulcare, 26 Md. App. 699 , 338 A. 2d 898 (1975); ¹² Murphy v. Bd. of County Comm’rs, 13 Md. App. 497 , 284 A. 2d 261 (1971). While it is unclear from the record in this case what happened to the jacket, i.e., whether it was retained by the appellant or the State, we observe that if the State had the jacket, no subpoena duces tecum was issued by appellant for its production, nor was the State otherwise called upon to produce it. Further, we note, as did the trial judge, that other persons were available to the appellant to testify to the color of the jacket. Under the circumstances we see no abuse of discretion in Judge Hargrove's declining to allow appellant to call an expert witness to give his interpretation of the color of the jacket, as depicted by the black and white photograph.

V Tina Green’s Testimony Tina Green’s counsel was called as a witness for appellant. The attorney testified that Tina Green’s trial had ended in a mistrial and that counsel had requested Gwendolyn Felder, Green’s “classification officer or social worker” at the jail, to explain the nature of the plea bargain that counsel was endeavoring to enter into on behalf of Green. Ms. Felder subsequently telephoned Green’s attorney and advised the attorney that she had discussed the plea bargain in a meeting “ ‘... with the two girls,’ ” Green and the appellant. Green’s counsel “. .. expressed great shock that she [Ms. Felder] took this course.” On the basis of Ms. Felder’s speaking to both Green and appellant, appellant sought to preclude the testimony of Green.

Appellant declared that her constitutional rights “.. . were violated by her being called into a meeting by a government official [Ms. Felder] was a witness who would testify against her when she was not represented by counsel.” Appellant asserts that the meeting with the city employed social worker was, specifically, a violation of her Miranda rights and, thus, Green’s testimony should have been excluded. While we agree with the appellant that the better course of conduct would have been for the social worker not to have interviewed Green and the appellant together for the ¹³ purpose of explaining the plea bargain to Green, we fail to see how that interview proscribes Green’s testimony at the trial of the appellant. Green’s testimony was based upon the statement she gave to the police on the night of the slaying and not upon what may or may not have been said during the interview with the social worker. The social worker’s possible infringement upon appellant’s Miranda rights, occurring subsequent to the time that Green had made her statement to the police concerning her own and appellant’s involvement in the crime, does not retroactively vitiate Green’s prior statement nor prohibit Green from testifying relative to that statement at appellant’s trial.

VI