Leuschner v. State

Couch, J., delivered the opinion of the Court. Ellwood Leuschner, the appellant, was charged with murder, sodomy, and related offenses in Wicomico County, Maryland. Trial was held in the Circuit Court for Garrett County before a jury, upon the request of appellant, which resulted in a finding of guilt of felony murder. Subsequently, appellant was sentenced to life imprisonment.

From this conviction appellant appeals, presenting the following issues: “1. Whether the trial court erred in admitting Appellant’s clothing and boots into evidence? 2. Whether the trial court erred in admitting Appellant’s hair samples into evidence? 3. Whether the trial court erred in admitting the knife recovered from Betty Larmore’s automobile into evidence? 4.

Whether the trial court erred in admitting Appellant’s statement to Sergeant Leard into evidence? 5. Whether the trial court erred in allowing Dr. Fitzpatrick to testify as to the result of the hospital medical staff conference which he did not attend?” ⁴²⁵ Because of the nature of the issues raised, we shall only briefly set forth the facts giving rise to the charges against appellant. On October 29, 1977, a nine year old boy, Rusty Marine, Jr., disappeared from his residence in the Naylor Mill Mobile Village in Salisbury, Maryland. He was last seen with appellant, who lived in a trailer next door to the boy’s residence with a Betty Larmore.

On October 31, 1977, the boy’s body was found in a shallow grave. The cause of death was described as multiple stab wounds to the back. The ensuing police investigation into the initial disappearance and subsequent discovery of the Marine boy’s body ultimately led to appellant’s arrest. 1 Further facts will be supplied as necessary. 1 — 4 The Motions to Suppress Appellant’s issues 1 — 4, inclusive, all deal with the denial by the trial court of his motions to suppress certain pieces of evidence and his statement. We shall address each issue sequentially. 1 The boots On October 30, 1977, police officers went to the trailer where appellant and Betty Larmore lived.

Appellant had been taken into custody prior to this because of information being received that appellant was wanted in California for a parole violation. It seems that both appellant and Larmore owned the trailer. During this visit the police asked Larmore if they could conduct a search of the trailer, advising her that she did not have to let them and that they could apply for a search warrant. She indicated she understood her rights and signed a consent form.

Thereafter, Larmore gave the police some pants and a shirt belonging to appellant and, with her consent, ⁴²⁶ they took a pair of his boots. Appellant argues that the court should have suppressed the clothing and boots because (1) there was no valid consent, and (2) there was no right to seize these items even assuming a valid consent. We disagree. Appellant concedes that Larmore could give a valid consent to search those areas of the trailer held under common authority with appellant since they possessed common authority over the trailer generally.

See Tate v. State, 32 Md. App. 613 , 363 A. 2d 622 , cert. den., 278 Md. 723 (1968). He claims that any consent given by Larmore was not voluntary, citing Whitman v. State, 25 Md. App. 428 , 336 A. 2d 515 (1975). We think his reliance on Whitman is misplaced. In that case, it is clear that the consent was given only after a truck operator, suspected of transporting an illicit cargo of cigarettes, was told they (the police) were going to get a search warrant and that they could legally go in there with or without his consent.

Beyond this, there was evidence that Whitman had been arrested initially without probable cause, followed by custodial prodding for his consent to a search and police representations that the issuance of a warrant would be practically automatic. We concluded in that case that under the totality of the facts the consent was coerced and thus not voluntary. In the present case we are persuaded otherwise. Larmore was not under arrest or even a suspect.

She was not misled or cajoled, threatened, or interrogated at length, nor was she told they could search the trailer with or without her consent. There is no question but that she was told her rights and understood them. Furthermore, it appears that she actually gave the clothing to the police. With respect to appellant’s second reason why the trial court erred, we likewise find no merit.

Appellant argues that since the police did not have sufficient probable cause to obtain a search and seizure warrant, they could not legally seize his clothing and boots. This argument overlooks the fact that consent had been given. In Wiebking v. State, 19 Md. App. 226 , 310 A. 2d 577 (1973), we held that a warrantless search, even without probable cause, is not constitutionally proscribed when there has been a valid consent to the intrusion. In Frazier v. Cupp, 394 U. S. 731 , 89 S. Ct. 1420 , ⁴²⁷ 22 L.Ed.2d 684 (1969), the Supreme Court, in dealing with a similar question, stated: “Petitioner’s final contention can be dismissed rather quickly.

He argues that the trial judge erred in permitting some clothing seized from petitioner’s duffel bag to be introduced into evidence. This duffel bag was being used jointly by petitioner and his cousin Rawls and it had been left in Rawls’ home. The police, while arresting Rawls, asked him if they could have his clothing. They were directed to the duffel bag and both Rawls and his mother consented to its search.

During this search, the officers came upon petitioner’s clothing and it was seized as well. Since Rawls was a joint user of the bag, he clearly had authority to consent to its search. The officers therefore found evidence against petitioner while in the course of an otherwise lawful search. Under this Court’s past decisions, they were clearly permitted to seize it.

Harris v. United States, 390 U. S. 234 (1968); Warden v. Hayden, 387 U. S. 294 (1967). Petitioner argues that Rawls only had actual permission to use one compartment of the bag and that he had no authority to consent to a search of the other compartments. We will not, however, engage in such metaphysical subtleties in judging the efficacy of Rawls’ consent. Petitioner, in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside.

We find no valid search and seizure claim in this ease.” Id. at 740. See also Cleveland v. State, 8 Md. App. 204 , 259 A. 2d 73 , cert. den., 257 Md. 732 (1970), and Miller v. Warden, 16 Md. App. 614 , 299 A. 2d 862 (1973). We see no error in denying appellant’s motion to suppress the clothing and boots. ⁴²⁸ 2 The hair samples Appellant next argues that the trial court erred in not suppressing certain hair samples the police had obtained from him on November 1,1977, since such samples were the “fruit of the poisonous tree”. Wong Sun v. United States, 371 U. S. 471 , 83 S. Ct. 407 , 9 L.Ed.2d 441 (1963); Everhart v. State, 274 Md. 459 , 337 A. 2d 100 (1975).

He contends that the samples were not obtained until after the State had obtained an inculpatory statement from him in violation of his privilege against self-incrimination and right to the assistance of counsel. Assuming, without deciding, that the samples were obtained following an invalid confession, we do not find that the trial court erred in denying appellant’s motion to suppress, under the circumstances present here. In Baker v. State, 39 Md. App. 133 , 383 A. 2d 698 (1978), a case in which we dealt in part with the “fruit of the poisonous tree” doctrine, we stated: “The Wong Sun Court went further and stated: ‘We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” ’ (Citation omitted.) Id, at 140.

The three generally recognized exceptions to the application of the doctrine are: 1) where the evidence sought to be introduced has an independent source, or 2) the evidence would inevitably have been discovered, or 3) where “the connection between the lawless conduct of the police and the ⁴²⁹ discovery of the challenged evidence has become so attentuated as to dissipate the taint”. 39 Md. App. at 140 . In the present case we conclude that circumstances warrant the application of the exception that the evidence would inevitably have been discovered. At the time the hair samples were requested of appellant (and we note he voluntarily obtained them himself and gave them to the police), the police were in possession of evidence from the grave site, appellant’s trailer, information as to his having been seen last with the victim, and of his movements which would have led police to him anyway. Once in custody, it is clear that the police would have been justified in obtaining the hair samples, even without appellant’s consent.

See Chimel v. California, 395 U. S. 752 , 89 S. Ct. 2034 , 23 L.Ed.2d 685 (1969) and Robinson v. State, 18 Md. App. 678 , 308 A. 2d 734 , cert. den., 269 Md. 765 (1973). We find no error on this issue. 3 The knife Appellant argues further that the trial court erred in not suppressing a knife found on a second search of Larmore’s automobile since it was discovered after an invalid inculpatory statement. We find no merit in this contention. Again, we need not decide if appellant’s statement was invalid, triggering the “fruit of the poisonous tree” doctrine, simply because the search was obviously done with the consent of the sole owner of the automobile.

In our view, appellant had no standing to object. See Rakas v. Illinois, U. S., 99 S. Ct. 421 , 47 L. W. 4025, 4026, n. 1 (1978). 4 Testimony of undercover police witness During the early stage of appellant’s incarceration in the Wicomico County Jail, and apparently after he had given the inculpatory statement, he made some statements to an undercover State police officer, who had been placed in ⁴³⁰ appellant’s cell under a ruse. The trooper was supposed to have been held on an escape and murder charge from Ohio. The trooper gave uncontradicted testimony that he did not interrogate appellant during the time they were together, but there was an exchange of accounts of crimes each had been charged with in the past.

Pertinent portions of the trooper’s testimony are as follows: “A Leuschner and I discussed the fact that I was escaped and had a fugitive warrant on me from Ohio, and he talked about a fugitive warrant from California, and for about an hour, during breakfast, he discussed that fugitive warrant from California and said that he didn’t know what it was about, and that he had thought the warrant had been dropped months before as his running partner, as he put it, had been tried for the crime. Q Did you ask him any questions at that time concerning the episode under investigation in Wicomico County? A No sir, I did not. Q ...

After your conversation at breakfast, what if anything did Mr. Leuschner do? A Mr. Leuschner then starting [sic] talking about the murders of the boys in Wicomico County. Q What did he say? A Just discussed them as third party, in general, at that time.

Q What do you mean by that? A He was talking — he said, they’re trying to put a couple murders on me. Q Did you ask him any questions? A No sir, I did not.

Q All right. What if anything occurred ... in the cell that evening? A We had supper, Leuschner and I, and