Franklin v. State

Moylan, J., delivered the opinion of the Court. On Thursday evening, February 4, 1971, a light snow lay over central Anne Arundel County. More snow, mixed with freezing rain, was falling through a post-twilight mist. At 7:30 p.m., a 28-year-old kindergarten teacher — wife and mother of two young sons — walked from a physical fitness class at the Anne Arundel Community College into a night of Gothic terror.

In at most partial redress, the appellant, Joseph Stanley Franklin, stands convicted by an Anne Arundel County jury of rape and sentenced by Judge George Sachse to life imprisonment. The appellant takes umbrage 1) at being identified in court by the woman he ravaged, 2) at the observation by the police of a brushed velvet burgundy-colored shirt hanging in the closet of his bedroom, and 3) at the seizure from him of a pair of boxer shorts, which were identified by the victim as being similar to those worn by one of her three assailants and which yielded, upon laboratory examination, a Caucasian limb hair. A brief narration of the macabre attack and of the investigation it set in motion will place these contentions in intelligible context. At the conclusion of the evening’s physical fitness class, the young victim went down to a locker room, where she put on a pair of blue jeans over her tights and leotard.

She donned a pair of zippered boots and put on a suede jacket with a fleece lining. Carrying the shirt which she had worn ⁶⁵³ to the gymnasium, she telephoned her husband at 7:25 p.m. to notify him, because of the icy road conditions, that she was on her way home. She left the building alone and walked across a parking lot about “as large as a football field.” The lot was “lit but it was dimly lit.” She observed no one else on the entire lot. When she reached her automobile, she threw in her shirt, started up the motor and then got out to scrape ice from the windshield.

She noticed two Negro males approach her from the middle of the lot. They asked her if she had a cigarette. She replied that she had not. They withdrew.

She went on to scrape ice from the rear window. Becoming aware that the two males were lingering ominously nearby, she “started to get worried and opened the car door.” Suddenly both males grabbed her and blurted out, “You are coming with us.” She yelled, “No, I’m not.” As they dragged her toward the middle of the parking lot, she resisted by kicking, jumping and trying to hit. She took sudden hope when she spied the headlights of an approaching car. She lurched toward it and started to scream, “hoping that someone would stop” and “render assistance.” The car did stop.

The appellant opened the passenger door of his two-door Pontiac and his two confederates pushed the victim into the car. As she was shoved into the back seat, “she started screaming louder and trying to resist.” The appellant reached over from the front seat and pulled at her shoulders, forced her head down between the bucket seats onto a console between them. The rest of her body was on the rear floor. The appellant “started strangling” her and then pushed a place on the back of her neck.

She “started to lose consciousness.” She then agreed to stop screaming, “Please, just let me breathe, I won’t do anything, just let me breathe.” With the appellant behind the wheel, a second assailant on the front seat, and the third assailant in the rear with her, the car drove into the night. The car drove on for between 10 and 12 minutes. The three man drank from a communal bottle. The young woman pleaded, “You don’t know me.

What do you want with me? You don’t know me. I have two children at home.” The brutal explanation followed sharply, “Mother fucking ⁶⁵⁴ whitey, we are going to get you, dirty white bitch.” The man in back, whom she heard referred to as “Mike,” unzipped and removed her boots and pulled off her jeans. The man in front, whom she heard referred to as “Jim or Tim or something like that,” ripped off her leotard and her brassiere as “Mike” then tore off her tights.

She was completely naked. The appellant, whom she heard referred to as “Joe or Joeso,” then turned the car from the main road and proceeded on a dirt road to a lonely wooded area. The car then stopped and turned off all lights. The appellant and “Jim or Tim” got out and left their prisoner alone with “Mike.” “Mike” commanded, “Suck on me.” She replied, “No, I can’t do that.” He renewed his demand, “You dirty bitch, suck on me.” She repeated, “No, I can’t.” He then said, “Where is that gun and we’ll see about that.” He grabbed her head and pushed it down upon his penis and she complied.

When the act of fellatio was completed, “Mike” pushed her back onto the seat and proceeded to have sexual intercourse with her. He then left the car and joined his confederates outside, leaving the victim momentarily alone. The respite was fleeting. The appellant got back into the front seat on the driver’s side. “Mike” took the front passenger seat. “Jim or Tim” then moved into the back with the frightened victim.

He commanded, “Suck on me.” She begged, “I’ll be sick.” He angrily ordered, “Mother fucker, you are not going to be sick.” She insisted, “I will. I can’t do that.” He then said, “Where is the goddam gun?” The victim winced as something sharp, from the direction of the front seat, poked into her naked ribs. “Jim or Tim” inquired again as to the whereabouts of the gun. “Mike” responded, “Don’t worry about it” and continued to push something into the ribs of the young teacher. She then submitted to “Jim or Tim’s” desire for fellatio. When that act was finished, she was pushed again onto the back seat and subjected to yet another act of sexual intercourse, this time by “Jim or Tim.” Throughout the course of both violations by her second assailant, the two in the front seat continued to drink.

The appellant then opened the left front door and got out ⁶⁵⁵ of the vehicle, so that he could change places with “Jim or Tim.” During the exchange, he took off his pants. The victim noticed his white boxer shorts with “little boxes design on them.” The appellant then laid the victim on the back seat and subjected her to a third act of sexual intercourse. The orgy of sadism was not yet at an end. The sixth and seventh ravages were to be brutishly simultaneous. “Mike” changed places with the appellant for another turn at the terrorized victim.

She was now suspended between the front and back seats. Her head and shoulders rested on the back seat; her torso stretched onto the console between the bucket seats of the front. “Mike” demanded that she “suck on him again.” With her head down on the back seat, she again submitted. “Jim or Tim,” not yet sated, was meanwhile mounting her body as it extended through to the front of the car and again had sexual intercourse with her, even as his companion was ravishing the same body inches away. When all appetites were ultimately slaked, the threesome announced to their young captive, “We are going to read about you in the paper tomorrow.” She read that sentence, in her mind, as a warrant of death. One of the attackers volunteered, “I’d like to take her home with me.” Another said, “Come on, let’s get out of here.” The appellant bound her hands behind her with her belt; he covered her eyes by tying her tights about her head.

With that, she was unceremoniously shoved out of the car and her predators drove off. Her clothes were strewn in the snow at her feet, as she trembled — bound, blindfolded and naked — in the desolation of the empty night. Marvin Cole was an acquaintance of the appellant. He had seen the appellant at between 5 and 5:30 that afternoon at Richman’s Drugstore in Annapolis.

The appellant was driving his car and was in the company of Charles Simms. The appellant invited Cole “to go out and make a hustle.” Cole declined. At between 10 and 10:30 that night, Cole saw the appellant again, in front of Brown’s Tavern on Clay Street in Annapolis. The appellant was part of a threesome: 1) himself, Joseph Franklin (the rape victim’s “Joe or Joeso”?); 2) Michael Cager (the rape victim’s “Mike”?) and 3) ⁶⁵⁶ Charles Simms (the rape victim’s “Jim or Tim or something like that”?).

The appellant bragged to the stay-at-home Cole that those who had gone on the hustle had “got over decent.” Cole, curious, asked him for detail. The appellant boasted of their savage depredations, “We went up Anne Arundel Community College and grabbed a girl and ripped her off decent.” Cole particularized, “They said they took her back, down back where Fishpaw’s Junk Yard is down back there and they said they did everything they could to her. And they put her out of the car and they took off.” Shortly thereafter, the appellant left Cole’s company, driving away in his car. Meanwhile, “down back where Fishpaw’s Junk Yard is,” the young teacher had .managed to untie her hands and to remove the blindfold from her eyes.

She found her jeans and boots and put them on. Although her suede jacket was later found not too far away, she missed it in the dark. As she groped for her clothing in the snow, she heard a car on the road and fled into the woods, terrified that her attackers were returning. Later, spying a distant light, she made her way to an inhabited house trailer.

She immediately called her husband and the State Police. The victim thought that she reached the shelter of the trailer at between midnight and one a.m. It was only 8:42 p.m. She revealed with poignant eloquence her state of mind, “Time that night stood still.’* An examining physician at the University Hospital in Baltimore found that the victim was suffering from “tender bruises” on her left thigh, on her left arm and upon her thorax (the upper body between the neck and the abdomen).

Scratches were found on her back. A vaginal smear revealed sperm cells, notwithstanding the fact that the victim was in the midst of her menstrual period. A highly professional investigative effort was immediately put in motion. Working backward from the house trailer and looking for a dirt road, Trooper Robin Thayer of the State Police found, near the shoulder of Jones Station Road where it is intersected by a small dirt road, the brown suede jacket of the victim.

Trooper Thayer noticed ⁶⁵⁷ tire marks leading from the hard surface onto the dirt road and back again. He summoned aid and the tread marks were photographed. Trooper Thayer covered the tracks to preserve them from the snow, then turning to rain. Det.

Sgt. Gary Alan Coonradt, a 13-year veteran with the Maryland State Police and an expert in tire print identification, was called to the scene. He determined that four tracks from a single vehicle had made all of the impressions by leaving the hard road, going back between 150 and 200 feet into a wooded area, turning around and then returning to the hard road. He made plaster molds of the track marks.

He verified what had already been noted by Trooper Thayer earlier that two of the tires were regular tires and the other two were snow tires. The rape victim had described the car in which she had been held captive as a 1965 or 1966 Pontiac or Chevelle, dark blue or black in color. It had decals on the rear window and an empty place on the back ledge where a speaker had been removed. It had bucket seats, rolled upholstery and a gearshift in the floor.

When Trooper James Mollman heard that description on the police radio, he recalled that he had stopped the appellant in just such a car on two occasions. He alerted his fellow officers to look for Maryland tags HH 9490 and to focus in their search upon the 4th Ward in the City of Annapolis. Armed with that information, Sgt. Walter Perkins of the Annapolis City Police Department found the appellant’s car on Clay Street in Annapolis at 1:32 a.m.

It was a black Pontiac, 1965 model, with decals on the left and right rear windows, a hole in the ledge where a missing speaker had been, rolled upholstery, bucket seats and a gearshift protruding from the floor. The gearshift was topped by a T-bar rather than by the standard ball, which unusual feature had been described by the rape victim. The vehicle was also observed to contain a bottle of liquor, corresponding again with the story as given by the victim. Sgt.

Robert Thomas, of the Maryland State Police, who had earlier supervised the photographing of the tire marks at the crime scene, proceeded to Clay Street to meet Sgt. Perkins. He observed that two of the tires on the appellant’s ⁶⁵⁸ automobile were standard and that the other two were snow tires. He examined the tracks in the snow immediately adjacent to the appellant’s automobile and found that they matched the tire tracks from the crime scene.

He photographed the tracks. (Later expert testimony by Sgt. Coonradt verified the tire identifications, both with respect to the four treads individually and with respect to the sequence of the tires as they were placed on the automobile. In the opinion of Sgt.

Coonradt, the possibility of some other car having four such varying treads in just such a sequence was exceedingly remote.) Sgt. Thomas went immediately to the Annapolis Barracks where he first summonsed the State Police Crime Laboratory and then contacted Assistant State’s Attorney Martin Wolff for purposes of preparing a search warrant for the automobile. The search warrant was signed by Judge James L. Wray at his home at 7 a.m. on February 5. It was served upon the appellant at 192 Clay Street at 9 a.m., immediately prior to its execution on his automobile parked just outside.

A microscopic investigation was made of the interior of the car. Kenneth B. Cooper, an F.B.I. Agent specializing in hair and fiber identification, compared samples of head, body and pubic hair from the victim with hairs found in the appellant’s automobile. He testified that microscopic examination of hair could establish the race of the donor. He pointed out further that head and pubic hairs, unlike limb hairs, possess enough' identifying characteristics — cuticle, medula, cortex, cell structure, etc. — to permit a significant comparison, although the science will not permit the absolute identification of a single individual.

A brown Caucasian head hair was located on the automobile console between the bucket seats. A similar head hair was taken from the back seat of the automobile. A similar head hair was taken from the front seat. All three of these head hairs had been forcibly removed.

All three of these head hairs matched, in all identifying characteristics, the head hair of the victim. In addition, two brown Caucasian pubic hairs were recovered from the back seat of the automobile and three brown Caucasian pubic hairs were recovered from the ⁶⁵⁹ rear floor of the automobile. All five of these hairs had been forcibly removed from the body and all five matched, in all identifying characteristics, the pubic hair sample of the victim. A few black Negroid head hairs found upon the jeans, upon the leotard and upon the tights of the victim were insufficient in quantity for microscopic comparison.

In this ever-tightening web of guilt were intertwined the strands of evidence now in issue. The Seizure of the Boxer Shorts When the police entered 192 Clay Street at 9 a.m. on February 5, the appellant was upstairs asleep. The appellant’s girlfriend, Irene Richardson, answered the door and showed the police in. The police went to the bedroom and awakened the appellant.

They read him the search warrant and served a copy of it upon him. The police testimony is very equivocal as to whether the appellant was then asked to accompany them to the State Police Barracks or whether he was taken there under arrest. In either event, he ended up at the State Police Barracks some short time thereafter. He was subjected to interrogation, which yielded only exculpatory statements.

A phone call from the police to Assistant State’s Attorney Wolff caused the appellant to be released. He was ultimately arrested approximately one week later. Before leaving the State Police Barracks on February 5, however, the appellant turned over the white boxer undershorts which he was wearing. He both cut and pulled from his body, samples of head hair and of pubic hair.

The furnishing of the hair samples is totally academic, since no microscopic comparison for identification purposes was ever made and the samples were not introduced in evidence. The boxer shorts, on the other hand, had real evidentiary significance. The rape victim identified them as being similar in every respect to those she had seen upon the driver, whom she identified as the appellant, as the dome light went on when he opened the car door and entered the back seat to rape her. She described with minute detail the ⁶⁶⁰ small design upon them “like little boxes.” A scraping of the shorts also produced a hair, which upon microscopic examination by the F.B.I. expert was determined to be a brown Caucasian limb hair.

The appellant’s attempt at trial to explain this away by attributing it to residue picked up in public laundromats was desperately ineffective and served only to highlight its significance. We hold that the seizure of the boxer shorts was constitutionally unassailable for three independent reasons. Consent Sgt. Thomas testified that he notified the appellant of the appellant’s imminent release before the boxer shorts or the hair samples were asked for.

The appellant was shortly thereafter asked if he would consent to furnish the hair samples and to turn over to the police the undershorts. According to Sgt. Thomas, “He was advised that he didn’t have to, that it was just to assist us in our investigation if he would and if he had nothing at all to do with the crime, it might clear him.” Sgt. Thomas made it clear that the release was not contingent upon the appellant’s cooperation, “Yes sir, he knew at that point that he was going to be released regardless and he knew prior to my asking for his skivvy shirt, trousers, head and pubic hair, that he was going to be released.” Although the appellant contested this testimony, other police officers verified it.

At a pretrial suppression hearing, Judge Matthew Evans found that the appellant had voluntarily consented to turning over the hair samples and the boxer shorts. Upon our independent constitutional review, and giving great deference to the findings by Judge Evans as to the first-level facts of who did or did not say what to whom, Walker v. State, 12 Md. App. 684 , 280 A. 2d 260 , we resolve the ultimate, second-level fact of voluntary consent vel non as did Judge Evans below. Schneckloth v. Bustamonte, 412 U. S. 218 , 93 S. Ct. 2041 , 36 L.Ed.2d 854 (1973); Lopata v. State, 18 Md. App. 451 , 307 A. 2d 721 . And see Simms v. State, 4 Md. App. 160 , 242 A. 2d 185 . ⁶⁶¹ Pursuant to Warrant At the suppression hearing, the appellant did not question the validity of the search and seizure warrant nor the adequacy of the probable cause upon which it was based.

Both the appellant and the State moved forward to consider the subsequent seizures and, remarkably, looked at the later seizures only in the frames of reference of 1) consent and 2) search incidental to a lawful arrest. Apparently, no one read the full warrant, the adequacy of which was assumed by all parties. Totally independent of whether any arrest is or is not made, a warrant to search may apply to the person of an individual just as it applies to automobiles or fixed premises. In Salmon v. State, 2 Md. App. 513, 519-521 , 235 A. 2d 758 , Chief Judge Murphy thoroughly analyzed this not-to-be disputed