Gilmore v. State

Smith, J., delivered the opinion of the Court. We shall here affirm convictions of murder in the first degree and robbery. The death sentence was imposed on the murder charge which brought the appeal to this Court. The sentence for robbery was 10 years to be served consecutively to the murder sentence.

The trial judge said: “This may seem to be an incongruity and a contradiction in and of itself, but the Court is directing that the sentence on the robbery indictment be served consecutively in the event that the death penalty imposed under Indictment No. 2789 should hereafter be commuted to life imprisonment.” No undue dispatch can be seen in the case, but the dispatch with which it has moved stands as a mark that the Maryland court system moves faster than some other court systems in the country. The crime in question took place on May 20, 1970. Appellant Ike Gilmore (Gilmore) ²⁷¹ was indicted on June 4, 1970, and arraigned on June 12. Trial began before Judge O’Donnell without a jury on October 30 and continued through November 10 when a guilty verdict was rendered.

Motion for new trial was filed on November 12 and denied on December 8. Sentence was imposed on March 4, 1971, after the filing of medical and probation reports. An appeal was entered to this Court on March 8, 1971. The record reached here on March 24 for our September Term, 1971. 1 The cause was argued on October 12.

Gilmore presents 10 questions to us. They are: “1. Was the warrantless arrest of the appellant executed without ‘probable cause’ in violation of the fourth Amendment to the Constitution of the United States ? “2. Was the appellant’s conviction based in part upon the use by appellee of illegally seized evidence? “3.

Did the trial court erroneously overrule appellant’s objections to the admissibility of an incriminating statement? “4. Did the trial court improperly consider prejudicial testimony and evidence illegally seized by the police in a warrantless search of a bus station locker? “5. Did the trial court err in denying appellant’s motion for judgment of acquittal? “6. Did the trial court abuse its discretion in allowing the appellee to reopen its case-in-chief, for the purpose of permitting the introduction of incriminating evidence by the appellee ? “7.

Did the trial court abuse its discretion by assisting the appellee in the tactical presentation of evidence thereby denying appellant due process of law? ²⁷² “8. Was the appellant denied due process of law as a result of appellee’s disorganized, uncoordinated and disjoined [sic] manner of presentation of evidence in the case-in-chief, thereby rendering impossible a systematic appellate review of the trial record ? “9. Did the trial court convict appellant on the basis of insufficient circumstantial evidence ? “10. Is the penalty of death imposed upon appellant in violation of the eighth and fourteenth amendments to the U. S. Constitution?” Emma Burdette testified that on May 20, 1970, she resided in an apartment at 3201 North Calvert Street in Baltimore.

A magazine salesman knocked at her door at about 10:30 that morning. She did not admit him. She could not identify the salesman other than by race. Gilmore is of that race.

She observed the salesman knocking on the doors of other apartments. Mrs. Burdette went to the first floor apartment of her best friend, Mae Wood, at about 2:30 p.m. on the same day. She found that Mrs. Wood had been beaten. The apartment had been ransacked.

Mrs. Burdette, a nurse, was unable to find a pulse or respiration. The autopsy report showed Mrs. Wood to have been violently and savagely beaten. She sustained broken cheek bones, a broken jaw, and a fractured skull. The thyroid bone in her neck apparently was fractured by strangulation.

Virtually every rib in her body was broken as a result of some compression-type force being applied to it. The medical examiner classified all of the injuries as blunt force injuries. The trial judge said of the injuries in his oral opinion: “The evidence offered in this case concerning the manner and means of the decedent’s death are the most extensive and vicious that this Court has ever had brought to its attention as either, in its earlier days as a prosecutor, in its ²⁷³ later days as a defense counsel in criminal cases, or since I have been a member of this Bench.” Mary Nolen and Richard Best, co-workers of Gilmore, and George Clotfelter, manager of the magazine company crew of which Gilmore was a member, all testified to seeing Gilmore in the bar of the hotel at which they were staying in Baltimore on the evening of May 20. His knuckles were bruised.

He said that he had been in a fight. He exhibited to them five rings. Two of the rings later were positively identified as having been owned by the victim. A third ring, removed from Gilmore at the time of his arrest and described as being a wedding band, was identified by these three individuals as being one of the five rings so exhibited.

He offered to sell the rings. Mary Nolen bought one. Another of the five rings was described as having a gold crest or coat of arms on it. Clotfelter described the conditions under which he fired Gilmore (and then subsequently rehired him) on May 20.

When Clotfelter extended his hand to shake hands with Gilmore he said Gilmore “kneeled”, explaining “[h]e went to his knee.” Gilmore explained his actions to Clotfelter by saying that he had been in a fight in the territory in which he was selling magazines. Gilmore’s right hand was described as swollen, sore, and skinned. , William Brown said a person he identified as Gilmore approached him at the corner of St. Paul and 31st Streets on May 21 and attempted to sell him magazines. Credentials exhibited at that time showed the name “Ike Gilmore”. The person who approached Brown said he was from Alabama, as is Gilmore.

Brown left the corner but later met Gilmore at 29th and St. Paul Streets where Gilmore said he had missed his ride. At that time he displayed a ring and gave it to Brown, stating that it had brought him good luck. This ring is described as a gold crest or coat of arms ring. It was one of the rings identi ²⁷⁴ fied by Nolen, Best, and Clotfelter as having been in the possession of Gilmore the previous evening.

While Gilmore and Brown were talking a white van passed by. Gilmore stated that it was his “bus” with part of his crew. Brown’s description of the van corresponded with the description of the vehicle used by the magazine group as described by them. Brown called the police and turned the ring over to them.

Detective Wagner of the homicide squad interviewed Brown and received the gold crest ring from him. The victim’s relatives identified it to him as the property of the victim. He ascertained that a magazine group had checked out of a Baltimore hotel on May 24 and had gone to York, Pennsylvania. Miss Nolen turned over to Detective Wagner a ring which she said she bought from Gilmore.

The victim’s relatives then identified that ring to Wagner as the property of the victim. This identification was made on the evening of May 27. Later that same evening Gilmore was apprehended by three Baltimore police officers in company with Best, one of his former fellow employees. The arrest took place on Howard Street in Baltimore near the Greyhound terminal.

The arrest was without a warrant. Wagner was not present when the arrest was made. Sgt. Dungan, one of the arresting officers, did testify that he went to York, Pennsylvania, in connection with the investigation and that he was present when the ring was recovered from Miss Nolen.

He was not present when it was identified. He was present when Miss Nolen said she obtained the ring from Gilmore. Gilmore was interrogated subsequent to his apprehension. As he put it in the statement of facts in his brief: “[Sgt.] Dungan testified from the notes that he took while Gilmore was being questioned which basically revealed that Gilmore admitted being in the home.

He was shown photographs and he admitted having talked with persons in the apartment house and that one woman had ²⁷⁵ opened the door just a little and that he was offered one dollar by one woman but he refused to take it. He admitted he sat on the couch shown on the photographs and that Mrs. Wood was wearing a green dress. He explained the rings by stating that he met a girl on the street and she gave him the rings and transistor radio and later they were stolen from his room at the Roundtowner Hotel. He purchased the ring with the coat of arms from a hippie.” Detective Powell testified that the police recovered “a small, plain gold wedding band from Mr. Gilmore’s left small finger” and “[a] pair of brown, possibly tan, boot-type shoes, with straps and buckles”, which he was wearing.

The boots were blood stained. Powell at that time observed “an unusual amount of swelling to [Gilmore’s] right hand, and, also, what appeared to be a small cut or laceration near the knuckle above the smallest finger of his right hand.” PROBABLE CAUSE FOR ARREST The law on this subject was summed up by Judge Horney for the Court in Mulcahy v. State, 221 Md. 413 , 158 A. 2d 80 (1960): “Article 26 of the Maryland Declaration of Rights prohibits the search of suspected places and the seizure of persons or property without a warrant, but this provision of the constitution does not prohibit arrest without a warrant when it is lawful and in cases where the public security demands it. In this state it has long been settled that a peace officer may arrest without a warrant, provided there were reasonable grounds to believe at the time of the arrest that a felony had been committed and that the person arrested had committed the offense. Baltimore & O. R. Co. v. Cain, 81 Md. 87 , 31 Atl. 801 (1895) ; Kirk & Son v. Garrett, 84 Md. 383 , 35 ²⁷⁶ Atl. 1089 (1896); Edger v. Burke, 96 Md. 715 , 54 Atl. 986 (1903); Brish v. Carter, 98 Md. 445 , 57 Atl. 210 (1904); Freedman v. State, 195 Md. 275 , 73 A. 2d 476 (1950); Edwards v. State, 196 Md. 233 , 76 A. 2d 132 (1950); Kauffman, Law of Arrest in Maryland, 5 Md. L. Rev. 125 , 159 (1941).

In Kirk & Son and Brisk, both supra, it was said, to use the language of the Brisk case at p. 450, that it is ‘wholly immaterial whether the suspicion arises out of information imparted to the officer by some one else, or whether it is founded on his own knowledge.’ Furthermore, in the Kirk & Son case this Court said [p. 406] : ‘ [i] t may be broadly stated that what amounts to probable cause * * * [will be] such reasonable grounds for suspicion of felony as will justify and require an officer to make an arrest.’ And in the Edwards case, supra, at p. 237, citing Brinegar v. United States, 338 U. S. 160 (1949), we stated in effect that the substance of all definitions of ‘probable cause’ is a reasonable ground for believing that the person about to be arrested is guilty and that ‘probable cause exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.’ ” Id. at 421-22. See also Edwardsen v. State, 231 Md. 332, 336 , 190 A. 2d 84 (1963), and Farrow v. State, 233 Md. 526 , 197 A. 2d 434 (1964). The Supreme Court of the United States in Draper v. U. S., 358 U. S. 307, 311-312 , 79 S. Ct. 329 , 3 L. Ed. 2d 327 (1959), has specifically held that although hearsay evidence is not legally competent evidence in a criminal trial, it may be admitted in determining whether there ²⁷⁷ is probable cause, citing Brinegar v. U. S., 338 U. S. 160, 172-173 , 69 S. Ct. 1302 , 93 L. Ed. 1879 (1949). In a footnote it referred to the opinion of Judge Learned Hand in U. S. v. Heitner, 149 F. 2d 105 (2d Cir. 1945), where he said for the court: “It is well settled that an arrest may be made upon hearsay evidence; and indeed, the ‘reasonable cause’ necessary to support an arrest cannot demand the same strictness of proof as the accused’s guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties.” Id. at 106 .

Draper is mentioned in Spinelli v. U. S., 393 U. S. 410 , 89 S. Ct. 584 , 21 L. Ed. 2d 637 (1969). Nothing in that opinion nor in U. S. v. Harris, 403 U. S. 573 , 91 S. Ct. 2075 , 29 L. Ed. 2d 723 (1971), alters its hearsay holding. Much is made in this case of the fact that Sgt. Dungan, the only arresting officer who testified for the State relative to the arrest, was not informed by Detective Wagner of information which would have shown probable cause to believe Gilmore committed the crime with which he was charged when he was arrested.

The record to which reference is made reads: “(The Court) Had you gotten any information from Detective Wagner? “(Mr. Dashner) Objection. “(The Court) Overruled,—before you made the arrest in this case ? “(The Witness) I don’t understand you, sir. “(The Court) I can’t make it any plainer— did you get any information from Detective Wagner before you made the arrest in this case? “ (The Witness) I don’t recall.” Sgt. Dungan was further interrogated as to his basis for arrest of Gilmore, the record being: ²⁷⁸ “Q. (By Mr. Davis) Had you received some information from Detective Wagner in regards to this case? “(Mr. Dashner) Objection. “(The Court) Sustained. He answered the Court’s question, ‘No.’ “Q.

(By Mr. Davis) On what did you base your arrest of the defendant, Mr. Gilmore ? “(Mr. Dashner) Objection. “(The Court) I will overrule it only on the issue of legality of arrest. “(The Witness) After a ring had been identified that belonged to the victim, which was turned over to Miss Mary Nolen in Pennsylvania, and by whom, we went out. “(The Court) And what? I don’t understand —what is the answer ? “(The Witness) A ring recovered from Pennsylvania from Mary Nolen was then identified by relatives of the victim that it belonged to the victim. “ (Mr. Dashner) Objection. “(The Court) Well, I will sustain the objection to that, unless the officer was there. “Q. (By Mr. Davis) Officer, were you present when this ring was identified? A. No, sir. * * * “Q.

(By Mr. Davis) Sergeant Dungan, did you have any other information about the person whom you were seeking, about the fact that he had this ring Miss Nolen had ? “(Mr. Dashner) Objection. “(The Court) Sustained. I didn’t hear that he had this ring that Miss Nolen had, if he did. “Q. (By Mr. Davis) Sergeant, the ring to which you have referred—strike that. “Sergeant Dungan, were you present when the ring was recovered from Miss Nolen? * * * ²⁷⁹ “(TheWitness) Yes. “Q. (By Mr. Davis) Did you receive certain information from Miss Nolen? * * He “(TheWitness) Yes. * * H« “Q.

(By Mr. Davis) Where did Miss Nolen say she had gotten the ring? A. From Ike Gilmore. “Q. Had that ring been identified— “(Mr. Dashner) Objection. “(The Court) I will sustain the objection to it. The officer said he would only be able to answer that by hearsay.” In Smith v. United States, 358 F. 2d 833 (D.C. Cir. 1966), there was a contention that “the Constitution requires the arresting officer personally, independent of his police colleagues, to have knowledge of all facts necessary to constitute probable cause including reliability of any informants” (emphasis in original). Judge (now Chief Justice) Burger there said for the court: “The short answer to this claim is that this Court has already decided that probable cause is to be evaluated by the courts on the basis of the collective information of the police rather than that of only the officer who performs the act of arresting. [Citing authorities.] Appellant fails in his efforts to distinguish these cases.

Moreover, Appellant’s reasoning suffers from a more basic fallacy than adverse precedent. Certainly two or three government agents together could go before a Commissioner to procure a warrant on the sum of their information and, once that warrant is issued, none of them need participate in the actual arrest. “The knowledge or information of the arresting officer at the time of arrest is relevant only ²⁸⁰ where an arrest is predicated on that officer’s personal observations and information concerning the criminal act. The correct test is whether a warrant if sought could have been obtained by law enforcement agency application which disclosed its corporate information, not whether any one particular officer could have obtained it on what information he individually possessed.” Id. at 835 (Emphasis in original.) The same court, also speaking through Judge Burger, had previously said in Williams v. U. S., 308 F. 2d 326 (D.C. Cir. 1962), cited in Smith : “We have set forth appellant’s contentions in detail because they are relatively novel claims. We avail ourselves of the occasion to make it clear that in a large metropolitan police establishment the collective knowledge of the organization as a whole can be imputed to an individual officer when he is requested or authorized by superiors or associates to make an arrest.

The whole complex of swift modern communication in a large police department would be a futility if the authority of an individual officer was to be circumscribed by the scope of his first hand knowledge of facts concerning a crime or alleged crime. “When the police department possesses information which would support an arrest without a warrant in the circumstances, the arresting officer, if acting under orders based on that information, need not personally or first hand know all the facts. The test, as we have said, is whether a prudent and cautious officer in those circumstances would have reasonable grounds —not proof or actual knowledge—to believe that a crime had been committed and that appellant was the offender.” [Citing authorities.] Id. at 327. ²⁸¹ There was evidence before the court that the police department knew that a homicide had been committed, that Gilmore was a magazine salesmen seen in the general vicinity in which the victim lived, and that two rings had been recovered, each of which was identified by the victim’s relatives as her property and each of which had come from Gilmore. This certainly would constitute probable cause for the police department to charge Gilmore with this homicide. It is to be regretted that the State did not see fit to bring out that the police department in advance of arrest was in possession of all the information to which Nolen, Best, and Clotfelter testified, which would have made an even stronger case for probable cause.

In Farrow v. State, 233 Md. 526 , 197 A. 2d 434 (1964), this Court said: “When Sergeant Rawlings, after interviewing defendant’s wife, thereafter broadcast the description of the defendant and his automobile and advised that he was wanted by the Baltimore City police for rape and other crimes, we think it is clear that he had probable cause to do so. The officers in Anne Arundel County who made the arrest knew nothing about the probable cause but they had received a ‘look out’ for the defendant from a responsible source and we think that is sufficient. If the police team working on the particular case had accumulated sufficient information to furnish probable cause for a reasonable man to believe that the alleged crime had been committed and that there was probable cause to believe that the defendant was involved therein, there was sufficient cause for his arrest.” Id. at 531-32 . It would have been preferable for the State to have spelled out its case for probable cause with greater precision.

Certainly it should have brought out that Sgt. Dungan and his associates were directed to apprehend ²⁸² Gilmore on a murder charge. Indeed, as one reviews the record one is inclined to wonder whether the State indulged in the elementary trial preparation of outlining what one intends to prove by what witnesses and reviewing with those witnesses their contemplated testimony in advance of trial. 2 However, when, with the information the Baltimore City Police Department had, Gilmore was arrested by Sgt. Dungan in company with Sgt.

Bannon, Detective Cousins and Richard Best, Gilmore’s co-worker, the conclusion becomes inescapable that they had been directed to arrest Gilmore, which direction would bring the case within the holding in Farrow . It is obvious that it was not for purposes of pure sociability that the three officers and the co-worker were walking in the vicinity of the Greyhound bus station at Howard and Center Streets. Confirmation for this conclusion is found in the testimony of Detective Cousins when he was called as a witness by Gilmore. The record at that point is: “Q. Do you know where you apprehended the defendant? “A.