Buzbee v. State

LOWE, Judge. This case points out the patience, perception, persistence, participation and perspicacity required to catch a rapist. It also shows how the pieces of evidence patiently gathered, while when viewed in isolation may be meaningless, when perspectively placed in a collage constituting a significant ⁶⁰⁴ whole, may justify by their combined effect an irrefutable conclusion. For two years or more an ever growing number of young girls were preyed upon by a warped debauchee in a substantial neighborhood of Montgomery County.

Although the investigative composite of crimes is relevant to the probable cause for a warrant ultimately sought upon the apprehension of appellant, the circumstantially proven conviction in the Circuit Court for Montgomery County from which this appeal was taken dealt with the kidnap-rape of a fifteen-year-old girl abducted from her home on July 31, 1981. By mid-1982 the Montgomery County newspapers were headlining the ominously frequent assaults by the “Aspen Hill Rapist”. A pattern of sexual assaults since the preceding year gave rise to the suspicion that it was but one individual responsible for up to sixteen rapes in a residential area indigenously recognized in the County vernacular as “Aspen Hill”. As victim after victim recited the frightening and humiliating details of their encounters, bit by bit a physical as well as psychological profile fell in place.

Physically, the assailant appeared to be a white male in his early twenties, approximately 5'9" tall, weighing in the vicinity of 160 to 180 lbs. His conversation with his victims revealed a distinctive speech pattern described variously as a rasp; a husky almost lisp. He had dark brown hair, probably a moustache, and was seldom clean shaven in the evening hours when the rapes occurred. Physical contact with his victims revealed substantial body hair.

He wore glasses, dark work-type pants, gloves, usually a ski mask and work-type shoes or dock siders. His transportation varied between a small silver foreign make car or a two-tone van. Frequently he was armed, exhibiting a handgun as a threat to his victims. Apparently aware of when the young girls he attacked would be home alone in the evenings, he would enter their homes, accost them from behind and blindfold them before ⁶⁰⁵ there was an opportunity to identify him.

Indications showed rather certainly that he had staked out the residences, knew the family habits, the residential layout and the neighborhoods as well. His knowledge of the surroundings and victim’s habits was as significant to the police as it was ominous to his victims and the public. While he usually blindfolded and gagged the victims when taking them to nearby areas where he committed his assaults, he was less sadistic than depraved. He sought satisfaction not by seeing his victims physically harmed as much as by forcing upon them his debauchery.

In addition to committing the act of intercourse itself, he frequently kissed and fondled his victims and performed cunnilingus upon them, demanding comparable attention in return. Psychologically he seemed to see himself more the Lothario than a Jack-the-Ripper. Not infrequently it appeared that he would steal from his victims available money and occasionally lingerie. On one occasion he stole a gasoline credit card which was used on nine later occasions.

More often he appeared to steal what appeared readily available in the residence or on the victim’s person, as incident to his primary sexual motivation rather than vice versa. After diligently and patiently patching together pieces of the puzzle, a profile began to take shape. Coincidence, coupled with police perception, began to fill in the missing pieces. An investigating officer learned that an officer at the Montgomery County Police Academy and his metropolitan police officer brother had a mutual friend who “came to mind” when they read newspaper stories about the Aspen Hill rapist.

A former schoolmate named Timothy Buzbee from the Aspen Hill area fit the general description. He was a white male, 25 years of age, the approximate size described, with a moustache, heavy “five o’clock shadow”, distinctive “soft and raspy” voice and had worn glasses before getting contact lens. Buzbee had not only lived in the Aspen Hill area but with his father operated a surveying company doing residences and residential sites in that area and in metropolitan Washington. He owned a silver ⁶⁰⁶ Toyota but had access through the company to a brown and tan van.

In his work he usually wore jeans or dark pants, construction type shoes, gloves and, in winter, ski hats. The metropolitan police brother who had worked with Buzbee related that Buzbee frequently looked in the residences where he was surveying and once had started to enter one of the houses. He also described an incident of Buzbee’s inordinate attention to, and knowledge concerning, a particular young lady who was known to, but not by, Buzbee. Such coincident particulars were sufficient to surmise a possibility but hardly enough seriously to suspect an otherwise reputable young family man.

The police, however, recalled an incident nearly two years earlier when a reported assault of a young woman was interrupted and two men acting as good Samaritans chased but lost the assailant who was dressed in dark pants and jacket. They later came upon a “jogger” dressed in a white oxford shirt, dark trousers and work shoes but the victim was not sufficiently certain to identify him positively. She was reinterviewed as to details in 1982 because the “jogger” in the work shoes and white shirt was Timothy Buzbee. Another friend of Buzbee’s, who was with the FBI, was located through the metropolitan police officer and his brother.

He supplied details of Buzbee’s character and habits which revealed an inordinate preoccupation and attention to young girls’ anatomies and the likelihood that he was at the very least a “peeping tom” who spent substantial time and effort viewing subjects of interest. By details pieced together from these “friends”, he was descriptively categorized as oversexed. The police then interviewed a secretary of the surveying firm with which Buzbee was affiliated. She happened to have been the wife of a county K-9 policeman who was occasionally called regarding the Aspen Hill rapes.

When she was first employed Buzbee had “grabbed” her but released her when she threatened to scream. She described Buzbee as 5'8 to 5'9, medium build, with a distinctive lisp or ⁶⁰⁷ hair lip type speech peculiarity, generally clean but frequently unshaved. He primarily operated one of two vehicles during his work: his own silver Toyota or his father’s brown and white van. She related an incident occurring in the spring of 1982 when, having occasion to enter Buzbee’s desk, she noted a black zipper locked bank bag not theretofore observed.

Finding a key in another drawer, she opened the bag and found six to ten pairs of ladies underwear of assorted styles, colors and sizes. After relocking and returning it to the desk, she observed from time to time thereafter that the bag appeared to be thicker although she never reopened it. In July it disappeared. She also took note of the interest Buzbee had regarding her husband’s work as it related to the Aspen Hill rapist.

He inquired a number of times whether any suspects had been developed and was equally interested in the tracking abilities of the canines handled by the secretary’s husband. In the meanwhile, writing samples were taken from the receipt slips obtained from one of the rape victim’s gasoline credit cards that had been stolen and used. These writing samples were matched by the Federal Bureau of Investigation against known writing samples of Buzbee. The result was that Buzbee should not be eliminated as a possible suspect in the writing of the signatures.

What had begun as a remotely hopeful tip based on coincident characteristics, developed into serious suspicion warranting surveillance. Such surveillance found Buzbee in a neighborhood where he parked and walked into the darkness toward the back yard of a residence. Noises were heard by the officers in the area but darkness obscured the actions causing the rustlings until a white male jumped the fences of the back yard and ran back to the van previously seen parked by Buzbee. Investigation revealed that in the house behind which Buzbee appeared to have been “peeping” was a young teenager alone, until her father’s return stimulated Buz ⁶⁰⁸ bee’s departure.

The officers found that pry marks were on locking devices of sliding doors and the door closest to the girl was open about three inches. While suspicion thus turned to likelihood, the police believed more was necessary to establish probable cause for obtaining from Buzbee blood, saliva, and various hair samples to be matched against similar samples obtained from the various rape victims, and to search the silver Toyota which was the vehicle more frequently seen. The police therefore contacted a victim of some fifteen months earlier who had been exposed to substantial conversation with the rapist and felt certain she could identify his voice due to its peculiar intonation. The police then selected a list of land surveyors in the area and called each with a similar fictitious survey problem permitting the victim to listen on an extension.

During the fifth call, the victim exclaimed that she was “pretty sure” that the male speaking was the voice of the man who assaulted her, but she wished to see him in person to be absolutely sure. The man who was speaking at that time was verified by his secretary as being Timothy Buzbee. A search warrant was issued on an affidavit setting forth in detail all that we have summarized and more. The evidence was seized; Buzbee was arrested, indicted, tried and convicted of first degree rape, first degree sexual offense, kidnapping and burglary of a fifteen-year-old victim whom we shall identify by a pseudonym — Debra Day.

Because there had not been an opportunity for a positive eyewitness identification the case was tried, as the investigation had been conducted, on circumstantial evidence. Debra, who was barely fifteen years old at the time, had been home alone. She was grabbed from behind, taken to her room where two pairs of socks were tied together forming a blindfold and a gag. The blindfold permitted her to see only a small triangular space where her nose caused a small space to be uncovered as the blindfold crossed her cheekbone.

She was then taken out her back door, walked to a ⁶⁰⁹ strange car and transported to another residence into which she was taken by the assailant who had a key thereto. She was taken to a bedroom and forced to undress, as did her assailant. Out of concern for the victim’s embarrassment at having to testify before an overflow crowd at a highly publicized and media covered trial, the victim was permitted to write rather than state what then occurred. She wrote. “He got on top of me and touched me all over and then kissed me in the vagina, he asked me to touch him and I said, ‘no’, he then had intercourse with me.

Debra was then taken to the bathroom “to clean up”, after which she was taken to her home and released at her back yard. Debra traced for police, and at trial, the approximate route she had been taken by recalling turns, road sounds, etc. She also described the surface of the route over which she walked when led to the door which appellant unlocked with his key. The route pieced together by the police pursuant to her description coincided with the location of a house owned by Timothy Buzbee’s parents. Debra also described what little she could see of the interior, floor entrance way, stairs, bed and bathroom.

The description was not unlike the interior of the elder Buzbees’ home, although appellant relied heavily upon proven variances. These pieces of evidence, each by itself insufficient to establish appellant’s criminal agency, together constituted a significant whole portrait, colored with legitimate inferences justifying the conclusion that Timothy Joseph Buzbee was Debra’s rapist. Other circumstantial evidence included the voice identification by Debra Day and expert testimony that hair samples found upon the victim’s clothing probably originated from appellant although admittedly, “hairs do not possess enough individual microscopic characteristics to be positively identified as originating from a particular person to the exclusion of all others.” ⁶¹⁰ Those, added to appellant’s appearance as described by the victim, his car, his ready access to his family home along with the- family home descriptions, constituted most of the circumstantial evidence from which inferences were available. The combined effect of this evidence pointed conclusively to Buzbee’s criminal agency; however, appellant himself added an additional inculpating circumstance.

Upon arrest appellant was given Miranda 1 warnings and after consulting his lawyer-father by ’phone declined to give any statement to the police. No interrogation followed that refusal; however, after being told that search warrants were being issued for his home, appellant was permitted to call and apprise his wife. During the conversation which he held within earshot of the police, he informed her that he had been arrested for the “Aspen Hill rapes”. Appellant had assumed, but had not been informed, of that reason for his arrest.

As a consequence, the State offered the statement to show appellant’s state of mind. Obviously the State was not concerned with proving the truth or falsity of that utterance, but only with the fact that it was uttered. Because the purpose for which the statement was admitted had nothing to do with its truthfulness or falsity, or nothing to do with the criminal character of accused, appellant’s attempt to misdirect us toward an “evidence of other crimes” argument is unavailing. That appellant’s blurt indicated his belief that his arrest was for more than one such rape is of no consequence because whether that was true or not is of little significance.

Any prejudice concerning implied collateral criminal acts is so unlikely as to be of little concern when balanced against the probativeness and need for the evidence. Cross v. State, 282 Md. 468, 474 , 386 A.2d 757 (1978). Whether this evidence is considered a “verbal act” as in Borza v. State, 25 Md.App. 391, 410 , 335 A.2d 142 (1975), or an admission showing consciousness of ⁶¹¹ guilt as in Sewell v. State, 34 Md.App. 691, 694-695 , 368 A.2d 1111 (1977), it is nonetheless admissible. More practically, the out-of-court assertion constituted circumstantial evidence by implication, not of the fact that appellant had been arrested for the Aspen Hill rapes, but of his belief that such purpose underlay his arrest.

Appellant’s credibility is not important because the relevance of the assertion does not depend upon its truth. For that matter, the inference available from the fact of such an assertion may contradict the truth of that which was asserted. 2 D.F. Bender, Hearsay Handbook, § 2.09 (2d ed.) Appellant’s mental state or consciousness of guilt at that time, alone or in combination with the other evidence of his criminal agency, is both material and relevant. Although the truthfulness of the statement was not relevant to appellant’s guilt or innocence, his belief without having been so informed was certainly relevant. We also hold that appellant’s assertion of his Miranda rights after consulting his father-lawyer has no effect upon this unsolicited remark by telephone to his wife, voluntarily made within the hearing of his captors.

The exclusionary rule does not apply to statements obtained without official interrogation directly or indirectly. Ciriago v. State, 57 Md.App. 563 , 471 A.2d 320 (No. 579, September Term, 1983,