Collins v. State

Mason, J., delivered the opinion of the Court. Gene Wilson Collins, Kenneth Dean Jones and Bruno Hunter, appellants, were jointly tried and convicted at a bench trial in the Circuit Court for Wicomico County of armed robbery. The testimony adduced at trial, partially through five eye-witnesses, established that on December 27, 1976, Appellants Jones and Hunter, one of whom was armed with a pistol, entered and robbed Banks Convenience Store. Appellant Collins, prior to the robbery, had “cased” the store and during the actual holdup was outside acting as a lookout.

On appeal appellants contend: I. That the State did not establish that the warrantless search of their residences was freely and voluntarily consented to by persons authorized to do so.

II

That the trial court erred in admitting certain hearsay statements. I. According to the evidence, the police conducted a warrantless search of each appellant’s residence and each search produced incriminating evidence that was either introduced or testified to at trial. A police officer testified that Appellant Collins’s stepfather and mother consented to the search of their home; that Appellant Hunter’s stepfather ¹⁶⁷ consented to the search of his home; and that Appellant Jones’s girlfriend consented to the search of her apartment. Appellants contend that the State failed to prove that these consents were freely and voluntarily given, and that the persons consenting had the authority to do so.

Specifically, appellants argue that the police officer’s testimony regarding the consents was hearsay; and thus, “effectively prevented appellants from scrutinizing the totality of circumstances underlying the consent to search their residences.” Appellants Collins and Hunter did not object to the police testimony concerning the consents to search, nor did they object to the legality of the searches. Accordingly, this question as to Appellants Collins and Hunter was not properly preserved for appellate review. Maryland Rule 1085. Appellant Jones did object to the search, however, on the grounds that the State had not adequately shown that his girlfriend had the authority to consent.

The police officer testified that he went to the apartment where he knew Jones was living. Jones was present at the apartment along with Ms. Ambrosia Dennis, who stated that the apartment was hers. She was advised of her right to refuse to consent to a search and was told the reason the police wished to search the apartment. Ms. Dennis signed a consent form allowing the police to search her apartment.

This search yielded a pistol, that was identified as being similar to the one used by the holdup men, and some money hidden in a baby’s shoe. Ms. Dennis did not testify at trial, and Appellant Jones did not contradict the officer’s testimony as to Ms. Dennis’s assertion that it was her apartment. Appellant Jones concedes that a girlfriend, in the status of a co-tenant, may consent to a search. Streat v. State, 11 Md. App. 543, 547 (1971).

Nevertheless, he contends that the officer’s hearsay testimony was inadmissible to establish her authority to consent to the search. It is clear that the officer’s testimony on this matter was hearsay; however, the formal rules of evidence do not govern the evidence that can be used in resolving preliminary fact questions concerning