DENO CONSTANTINE KANARAS v. State

Alpert, J., delivered the opinion of the Court. In this case we hold that no error was committed by the Circuit Court for Kent County (Rasin, J.) in the trial of Deno Constantine Kanaras, the appellant, and we shall affirm the judgment of that court. Appellant was indicted by the grand jury for Harford County on July 28, 1981 for murder, daytime housebreaking and theft offenses. At trial, Kanaras did not deny his presence at the scene of the crimes while they were being committed, but rather his defense was that ⁵⁷⁰ any involvement on his part was coerced by one John Huffington, who had already been tried and convicted of first degree premeditated murder. 1 The case was removed to Kent County and after a nine-day jury trial, appellant was convicted of felony murder, theft and daytime housebreaking.

Judge Rasin imposed a life sentence for the convictions. An appeal was timely filed, and appellant contends that: 1. He was denied a fair trial by the State’s deliberate non-disclosure of (a) inconsistent statements given by a prosecution witness it intended to call, in violation of a pretrial discovery order, and (b) statements prepared by the chief investigator concerning matters he testified to on direct examination; 2. The trial court erred in denying appellant’s motions for judgment of acquittal on the felony murder and daytime housebreaking charges; 3.

The trial court erred in prohibiting appellant’s psychiatrist from expressing opinions about whether appellant’s psychological profile was consistent or inconsistent with voluntary participation in a violent crime and with prompt reporting to the authorities; 4. The trial court erred in varying the order of proof on its own motion so as to permit evidence of appellant’s other crimes in order for the jury to assess appellant’s credibility; and 5. The trial court erred in permitting the State to introduce motivation evidence against appellant. I. The Becker and Hudson Murders In the early morning hours of May 25, 1981 Diane Becker ("Becker”) and Joseph Hudson ("Hudson”) were brutally ⁵⁷¹ murdered in Harford County, Maryland.

There is little doubt that the murders were drug-related. On the night in question Deno Constantine Kanaras ("Kanaras”) and John Norman Huffington ("Huffington”) were seeking to obtain cocaine. Kanaras telephoned Huffington, who after attempting unsuccessfully to locate a seller, told the appellant to pick him up in order that the two might consummate a deal elsewhere. About midnight the two went to Pecora’s Fallston Inn.

After about forty-five minutes, they left for the Golden Forty, another drinking establishment, arriving there at about 1:20 A.M. At the Golden Forty Huffington spoke with Joseph Hudson about the possible purchase of cocaine. Shortly thereafter, Hudson and Diane Becker, his girlfriend, left the club with another couple. Appellant and Huffington followed the others to a local convenience store where Huffington and Hudson made the necessary arrangements for the cocaine deal. Appellant and Huffington continued to follow Hudson and Becker to the campgrounds, where the victims maintained a 22-foot Shasta recreational vehicle, 2 and then returned to Huffington’s apartment.

A deal with a third party was supposedly arranged and Hudson, believing that the third party wished to speak with him directly, accompanied appellant and Huffington to a location off Route 24 in Harford County. After they exited appellant’s car, Hudson was shot several times by Huffington and cocaine was taken from his person. Huffington and Kanaras left Hudson for dead. At this point, according to Kanaras, Huffington pointed the gun at him and ordered him to return to the campgrounds, for the supposed purpose of removing about $2,000.00, which Huffington had been told was for drug transactions, from the Hudson trailer.

Upon their arrival at the mini-motor home, they found Diane Becker and her child asleep. Kanaras found the money to which Huffington had ⁵⁷² alluded. Huffington took the money. Next, Huffington proceeded to hit Becker across the head with a large bottle five or six times and then stabbed her in the chest and throat until she was dead.

The two returned to Huffington’s apartment where the money was divided and bloodstained clothes washed. Later they disposed of the bottle, some bullets, and burned other evidence of the crimes. It was about 1:00 P.M. when Kanaras finally arrived back at his house. He slept until about 6:00 P.M. whereupon he discovered that the authorities wished to speak with him.

Huffington had telephoned Kanaras, warning him not to tell the police what had happened or else "he would get me.” The following day, appellant, along with his father and his attorney, went to speak with the State’s Attorney. Kanaras voluntarily gave a statement and participated in the recovery of the evidence which Huffington had sought to destroy. On June 16, 1981 Kanaras testified before the Harford County Grand Jury. As a result of this testimony, Huffington was indicted.

On July 28, 1981 Kanaras was himself indicted for the murders and for unrelated narcotics offenses. Kanaras testified against Huffington at Huffington’s trial on November 9, 1981. The case against Kanaras was removed to Kent County on January 20,1982. A jury there found the appellant guilty of the felony murder of Diane Becker, theft and daytime housebreaking.

II

Production of Statements of Rassa and Saneman A. The Rassa Statements At a pretrial motions hearing, it was ordered "that the State furnish to the defendant... copies of any inconsistent statements of witnesses it intends to call, if such statements exist and are in its possession____” At a pretrial conference, defense counsel sought to prohibit "evidence proof that Kanaras committed other crimes on other occasions, such as drug transactions or theft offenses, or weapons offenses.” The prosecutor replied that "at this particular time we have no intention whatsoever of using any of that information at all during the course of the trial in chief.” During the course ⁵⁷³ of the trial, the prosecution proffered that Stephen Rassa would testify that on a prior occasion, just before he and the appellant purchased cocaine from Hudson and Becker at the camper, Kanaras stated that he "wouldn’t mind robbing Joe Hudson and stealing his coke and money,” and that on that occasion the appellant had to be dissuaded from carrying a gun into the camper during the cocaine purchase. Appellant contends that under the pretrial order he should have received prior statements by this witness before he testified. This contention is without merit. No sanctions were ever sought for the alleged violation of the pretrial discovery order.

Further, the conditions suggested in that order were not required under the Maryland Rules. Appellant may not present the claim for the first time on appeal. Maryland Rule 1085. The failure to seek sanctions operates as a waiver of any defects and prohibits appellate review of the question.

Further, even if the issue were properly before us we would find the contention to be without merit. Appellant received the statements at the precise time that he was entitled to receive them, i.e., after Rassa’s direct examination. See, Leonard v. State, 46 Md. App. 631 , 421 A.2d 85 (1980), affirmed, 290 Md. 295 , 429 A.2d 538 (1981) and the discussion of disclosure of Saneman’s notes, infra. B. Saneman’s Notes (Production for Purpose of Impeachment) Eavid Saneman, a deputy in the Harford County Sheriffs Office, served as chief investigator of the Hudson and Becker murders.

Saneman testified that in the evening after the murders he went to the appellant’s house and was told by the appellant that while he had been with Huffington on the night in question, he was unaware of the killings. With appellant’s consent, Saneman had appellant’s car searched. The next morning appellant voluntarily appeared at the State’s Attorney’s Office, where in the presence of his attorney and Saneman, a statement implicating Huffington was given. Kanaras maintained, however, that he was not a vol ⁵⁷⁴ untary participant in the crimes.

With the help of the appellant, Saneman was able to recover the handgun and knife used in the murders, ammunition, and Becker’s burnt purse and identification. It was through Saneman’s testimony that Kanaras’ detailed statement was introduced at trial. Saneman did not use any notes during his direct examination. However, prior to cross-examining the witness, defense counsel sought to obtain statements Saneman had written concerning his investigation and reports he had prepared concerning the matters to which he had testified.

The production of these writings was refused by the trial judge on the basis that the witness was a police investigator and that the writings were of an investigatory nature. Assuming arguendo that the trial judge erred in refusing to order the State to produce the subject reports, under the unique circumstances of this case, any error therein was harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976). Appellant contends that he "was denied a fair trial by the State’s deliberate non-disclosure of . .. statement prepared by the chief investigator [Saneman] concerning matters he testified to on direct examination.” However, in his argument he speculates that there was something in Saneman’s notes "that the defense could make use of,” thus implying a desire to impeach Saneman by use of those notes — a tactic which seems to be inconsistent with the defense presented at trial.

The defense theory at trial had been that Kanaras was an unwilling participant in the criminal activities and was "coerced” by Huffington into committing the offenses. It was argued that Kanaras participated only out of a fear of Huffington and that ' he cooperated fully with the authorities. The importance in this consideration will become apparent. Maryland Rule 741 governs discovery in criminal proceedings.

In relevant part, it requires the State to produce any material or information which tends to negate the guilt ⁵⁷⁵ of defendant or a co-defendant. In both state and federal courts case law has emerged as a result of the decision of the United States Supreme Court in the case of Jencks v. United States, 353 U.S. 657 (1957) thrusting an additional duty of production upon prosecutors (separate and apart from pre-trial discovery). After a witness has testified for the prosecution, if it is disclosed that the witness has previously made oral or written reports or statements concerning the matters to which he has testified, upon request by defense counsel, those writings or reports must be produced. Id.

The purpose of requiring production of these statements 3 is to allow defense counsel the opportunity to discover any inconsistencies between the witness’ trial testimony and his prior statements. Armed with these inconsistencies, defense counsel would be better able to impeach the credibility of the witness’ trial testimony. This method of impeachment by prior inconsistent statement is an effective and often used method of cross-examination which brings into question the believability of a witness’ testimony. See generally, McCormick on Evidence §§ 34-38 (2d ed. 1972).

No foundation of inconsistency need be laid by defense counsel before production of the writings is required. Jencks, supra. For production purposes it need only appear that the evidence is relevant, competent, and outside of any exclusionary rule. Id.

As a result of the decision of the Supreme Court in Jencks , Congress moved swiftly to enact 18 U.S.C. § 3500 in 1957, the act popularly known as the Jencks Act. One of the most important motivating forces behind its enactment was the fear that an expansive reading of the Supreme Court’s opinion in Jencks would compel indiscriminate production of agents’ summaries of interviews regardless of their character or completeness. See, Palermo v. United States, 360 U.S. 343 (1959). In pertinent part, the Jencks Act provides: ⁵⁷⁶ (a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena (sic), discovery, or inspection until said witness has testified on direct examination in the trial of the case.

(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statment relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use. (e) The term "statement”, as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means — (1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury. 18 U.S.C. § 3500 . ⁵⁷⁷ The decision in Jencks was not constitutionally based but involved in supervisory jurisdiction of the Supreme Court over the federal courts. Palermo, supra, 360 U.S. at 350 .

While the federal act is not binding on the individual states, Maryland courts have, in the absence of legislative enactment, implicitly accepted the underlying foundations of the law without adopting wholesale the rules contained therein, primarily on the basis of due process consideration, and as a necessary outgrowth of the right of cross-examination. Carr v. State, 284 Md. 455, 472-73 , 397 A.2d 606 (1979); Leonard v. State, supra. In this regard, our opinion in Leonard is most instructive. During the cross-examination of the victim in Leonard , a prosecution for armed robbery, it was revealed that on the night after the alleged robbery, that witness had given a written statement to the police.

Defense counsel sought to obtain a copy of the statement, but the trial court, after examining the statement, found no exculpatory material contained therein and denied defense counsel’s request for production. We reversed, holding that the trial judge had applied both an incorrect standard and an incorrect procedure in reaching its conclusion. Judge Wilner, speaking for this Court, observed: Carr makes clear beyond question that a defendant’s right, at trial, to inspect the prior statement of a state’s witness who has testified is not necessarily limited (1) by the rules pertaining to pretrial discovery, or (2) to statements that are merely exculpatory. When confronted with the actual testimony of a critical witness and the knowledge that the witness has given a prior statement bearing on a material issue in the case, counsel is not engaged in a mere "fishing expedition” in seeking access to the prior statement.

At that point, it becomes more than a matter of casting a seine over the State’s files to see what turns up, but of directly confronting the witness . .. The test clearly is whether the statement is, or may be, inconsistent with the wit ⁵⁷⁸ ness’ trial testimony, and thus usable in cross-examination. To the extent that the court judged, or appeared to judge the issue exclusively in terms of whether the statement was exculpatory, it was plainly in error, (emphasis supplied). 46 Md. App. at 637-38 , 421 A.2d at 88-89 . Citing a passage from Jencks, supra, cited in Carr, supra, 284 Md. at 461 , 397 A.2d at 608 , that "[F]lat contradiction between the witness’ testimony and the version of the events given in his reports is not the only test of inconsistency,” Judge Wilner went on in Leonard to observe: These more subtle aspects of potential inconsistency, intrinsically subjective, have to be viewed from the defendant’s perspective, and can be properly weighed only by defense counsel (with the assistance of his client).

A screening of the statement by the court cannot suffice as an effective substitute. The court cannot be expected to view in the same context as defense counsel these more latent and subtle gaps or differences; nor should it purport to do so ... [I]t is incumbent upon the court, under the circumstances evident here, to permit counsel to inspect the statement and determine for himself whether it is or is not usable for cross examination. The court still retains, of course, the ultimate right to determine whether the statement, or any part of it, is admissible in evidence, either as a document or through questions propounded to the witness. The issue here is not admissibility but inspection for possible use in cross examination.

(emphasis supplied). 46 Md. App. at 638-39 , 421 A.2d at 89 . The principles of Carr and Leonard have recently been held to apply to witness statements in administrative proceedings under the Law Enforcement Officers’ Bill of Rights. Chief, Montgomery County Dept. of Police v. Jacocks, 50 Md. ⁵⁷⁹ App. 132, 436 A.2d 930 (1981). See, Whitehead v. State, 54 Md. App. 428 , 458 A.2d 905 (1983).

Citing Carr and Leonard , appellant contends that the trial judge abused his discretion in denying the blanket disclosure of the extensive report prepared by Saneman. Ordinarily, we might agree with appellant, but given the unique circumstances and present posture of this case, application of the Carr-Leonard principles is unnecessary. As previously stated, Kanaras defended the action on the basis that he was an unwilling participant in the crimes, he was coerced by Huffington and that he assisted the authorities in solving the crimes and prosecuting the perpetrator. With that point in mind, a review of Saneman’s testimony makes clear that appellant was not in any way harmed or prejudiced by the testimony.

Saneman said what Kanaras would have hoped he would say about appellant’s participation in the events. He indicated that Kanaras had voluntarily come forward, implicated Huffington, led the authorities to evidence that might not have been found without his assistance, testified against Huffington, and generally cooperated with the investigating and prosecuting authorities. There were no critical omissions between Saneman’s testimony and Kanaras’ statement. Under these circumstances, Kanaras would not want to impeach the testimony of Saneman, for to do so would cast doubt in the minds of the jury as to the validity and viability of the defense he was presenting.

In the language of Jencks , this material would not be relevant, for Kanaras would not want to impeach Saneman’s testimony. It appears that defense counsel was merely trying to use the "back door” to obtain broad investigatory evidence that was otherwise undiscoverable. Carr and Leonard are not the proper vehicles for the production of such evidence. Discovery of so-called "Brady” exculpatory material is provided for under Maryland Rule 741 and for its required production we depend upon prosecutorial integrity.

Appellant has apparently misconstrued the purposes of Carr and Leonard . Furthermore, a review of the testimony given by Kanaras indicates nothing that contradicts Saneman’s testi ⁵⁸⁰ mony, thus lending further credence to the notion that it was in Kanaras’ best interests not to impeach Saneman’s testimony. Under these circumstances, the denial by the trial judge of defense counsel’s request for production of the writings of Saneman was not reversible error. We reiterate that we do not decide the issue based upon the distinction drawn by the trial judge that the writings sought to be produced were police investigatory reports.

Police reports may or may not provide "statements” under Carr and Leonard . To the extent that they do, there exists no sanctuary by virtue of the uniform or the badge. For a compilation of those cases addressing the issue of whether a statement or report of a police or investigatory officer made in connection with his investigation of the case and his arrest of the defendant was producible for impeaching the police officer, see, 7 A.L.R. 3d 181 "Discovery — Impeachment of Witness” § 10(f).

III

Denial of the Motion for Judgment of Acquittal (The Shasta as a Dwelling House) Appellant next contends that "the daytime housebreaking and felony murder charges should never have been submitted to the jury because Hudson’s recreation vehicle [in which Becker was murdered] is not a house within the meaning of Code, Art. 27, Sec. 30(b).” It is argued that the victims’ 22 foot Shasta was a vehicle and not a mobile home. He points out that the Shasta was self-propelled, readily movable, resting on wheels, registered with the State Motor Vehicle Administration and had been at the campground for less than a month. Further, we are referred to the fact that Becker had an apartment in Edgewood, Maryland, and that Hudson’s official address was listed as Aberdeen, Maryland. We find this contention to be without merit.

Md. Ann. Code art. 27, § 30 (b) 4 provides that: ⁵⁸¹ Any person, his aiders, abettors and counsellors, who shall be convicted of the crime of breaking a dwelling house in the daytime with intent to commit a murder or felony therein, or with intent to steal, take or carry away the personal goods of another of any value therefrom, shall be guilty of a felony, and upon conviction thereof, shall be sentenced to the penitentiary for not more than ten years, (emphasis supplied). The statute must be construed in light of the common law, Reagan v. State, 2 Md. App. 262 , 234 A.2d 278 (1967), and as such, in order to determine whether the vehicle in question was a dwelling house, we must examine the purpose at common law of imposing punishment for the parallel crime of burglary. This court has in the past observed that the law of burglary was developed for the purpose of protecting the habitation of an individual. See, Arnold v. State, 7 Md. App. 1 , 252 A.2d 878 (1969).

An annotation in 43 A.L.R.2d at pp. 834-35 explicates this notion: It is evident that the offense of burglary at common law was considered one aimed at the security of the habitation rather than against property. That is to say, it was the circumstance of midnight terror aimed toward a man or his family who were in rightful repose in the sanctuary of the home, that was punished, and not the fact that the intended felony was successful. Such attempted immunity extended to a man’s dwelling or mansion house has been said to be attributable to the early common-law principle that a man’s house is his castle. The jealousy with which the law guarded against any infringement of this ancient right of peaceful habitation is best illustrated by the severe penalties which at common law were assessed against a person convicted of burglary, even though the enterprise, except for the essential elements of ⁵⁸² breaking and entering a mansion house or dwelling house at night with intent to commit a felony therein, was unsuccessful, (footnotes omitted).

Further, as one text writer has observed: That every man’s house is "his castle” is a concept that has been echoed down through the ages and the social interest in the security of the "castle” has its origin in antiquity; for just as an animal or a bird resents any intrusion into its place of abode, so no doubt did primitive man. The terms commonly used to indicate the place are "dwelling” or "dwelling house,” but the "word 'dwelling’ imports a human habitation,” and as a matter of common law, burglary is strictly an offense against the habitation ... A regular place of abode is a "dwelling house” for purposes of burglary, moreover, even if it is on wheels and not restricted to a particular locality. "A house trailer is simply a mobile house.

It is as much a dwelling as any house which is built on a foundation and therefore not mobile.” (emphasis supplied). R. Perkins, Criminal Law (3d ed. 1982) at 255-56. Generally a vehicle-type structure, used as a vehicle primarily for transportation purposes, should not be regarded as a dwelling house, even if occasionally used for sleeping. But as Perkins notes, cases have held such vehicles to be dwelling houses where the facts show that they are actually used as dwellings.

The ability of a vehicle such as the Shasta to be considered as a dwelling house is supported by the decisions in other jurisdictions. See, e.g., United States v. Lavender, 602 F.2d 639 (4th Cir. 1979) (Winnebago mobile home held to be dwelling under breaking and entering statute where owner had testified that he used it as a home while on the road); Copley v. Rona Enterprises, Inc., 423 F. Supp. 979 (S.D. Ohio 1976) (mobile home is a dwelling under Federal Truth in Lending Act); United States v. Grooms, 348 F.Supp. 1130 (D.C.M.D. Fla. 1972) (mobile home site is a dwelling ⁵⁸³ under the United States Fair Housing Act); People v. Netznik, 66 Ill. App. 3d 72 , 383 N.E. 2d 640 (1978) (tent held to be building under burglary statute although not permanent so long as it was designed for the habitation of man; a tent, when erected and in use as a habitat or shelter, achieves a degree of permanence); State v. Ryun, 549 S.W.2d 141 (Mo. 1977) (mobile home/house trailer on farm held to be dwelling house where detached from its tow and immovable. The Court did observe that "whether the trailer must be licensed for use on the public highways and whether interfering with a trailer in some manner may be tampering with a motor vehicle are not relevant to the present inquiry.”); Commonwealth v. Mayer, 240 Pa.

Super. 181 , 362 A.2d 407 (1976) (uninhabited trailer held to be dwelling house); People v. Winhoven, 65 Mich. App. 522 , 237 N.W.2d 540 (1975) (mobile home held to be dwelling house for purpose of arson statute as "when a mobile home is used as a person’s principal residence, it more nearly fits within the meaning of the dwelling house statute than the house trailer statute.”); Artman v. College Heights Mobile Park, Inc., 20 Mich. App. 193 , 173 N.W.2d 833 (1969) (mobile home held to be dwelling house); Harden v. State, 417 S.W.2d 170 (Tex. Cr.

App. 1967) (mobile home held to be a house when used as a residence);