Kraft v. State

¹⁰⁹ Thompson, J., delivered the opinion of the Court. The appellant was convicted by a jury in the Circuit Court for St. Mary’s County for violation of state laws concerning controlled dangerous substances. We found the search warrant to have been issued without probable cause. Kraft v. State, 16 Md. App. 347 , 297 A. 2d 328 .

The Court of Appeals reversed and remanded for the determination of the questions which were not reached under our prior decision, State v. Kraft, 269 Md. 583 , 307 A. 2d 683 . The appellant alleges the trial court erred (1) in denying her motion to suppress the seized drugs because the warrant was improperly served; and (2) in denying her motion for a mistrial based upon the prejudicial language of the trial judge in the presence of the jury. We find both rulings to have been proper. On 8 October 1971, Deputy Sheriff Clarke executed a search and seizure warrant upon the apartment leased to the appellant and another tenant.

The sheriff obtained a key to the premises from Mr. Chamberlain, project manager of the housing complex. Mr. Chamberlain accompanied the sheriff, who searched the appellant’s then unoccupied apartment and seized a quantity of LSD. On 2 November 1971, the appellant, by motion to suppress evidence, asserted, inter alia, that the search warrant was improperly executed without her consent. This argument was explicated during the hearing on the motion: “Mr. Myerberg: . . . my third part of the argument would be since they [appellant] were not on the premises at the time of the search . . . and since Deputy Clarke testified he didn’t even bother to look for them, he knew they weren’t on the premises when the search was made, the search was made without the presence of the accused, the search is not a valid search.” The appellant cites no relevant authority to support her argument that accused must be present at the time a search ¹¹⁰ warrant is served, and we know of none.

The motion was properly denied. The motion for mistrial was based upon two grounds. The first was the exclusion of a prospective witness, a co-defendant not being tried, from the court room. Md. Rule 753 permits a trial judge to exclude prospective witnesses from the court room on his own motion.

We see no error because only one witness was so excluded. The second ground for the motion was based upon the following colloquy: “Mr. Myerberg: You mention this informant has been responsible for eleven narcotics arrests? The witness: Yes sir. Mr. Myerberg: Would you identify the arrests for me? [The Assistant State’s Attorney objects.] Mr. Myerberg: We have a right to know the