Manno v. State

DAVIS, Judge. Appellant, Ronald Anthony Manno, was tried and convicted at a bench trial in the Circuit Court for Baltimore County (Turnbull, J.) of first degree murder, use of a handgun in the commission of a felony, use of a handgun in the commission of a crime of violence, and common law assault. The trial judge merged Counts III and IV (use of a handgun in the commission of a crime of violence and assault) into the first two counts and, on May 27, 1992, imposed a sentence of life imprisonment for first degree murder and a concurrent term of twenty years imprisonment for use of a handgun in the commission of a felony. On appeal, Manno asks: ²⁴ 1.

Did the trial judge apply the wrong standard in finding [him] guilty of first degree murder? 2. Did the trial judge err in refusing to grant [his] motion to suppress evidence seized following the unlawful search of [his] car? 3. Did the trial judge err in refusing to grant [his] motion to suppress statement? 4. Did the trial judge err in finding the statement of Mary Flora to be admissible as an excited utterance?

The facts essential to our review of the issues presented are not seriously disputed. At approximately 12:45 on the morning of August 11, 1991, forty-year-old Mary Flora died as a result of a gunshot wound inflicted by her 53-year-old scorned lover, appellant, Ronald Manno. David Chiasson, an anatomic pathologist who performed the autopsy on the victim, opined that the cause of death to Flora was a gunshot wound to the back of the left chest, which fact was confirmed in appellant’s testimony. After testifying how the romantic relationship with Mary Flora developed from their meeting on December 8, 1990 to a point where the couple spent three to four nights per week in her apartment, Manno, a twice-married father of three adult sons who was separated from his second wife, indicated that Flora had told him that she wished to terminate the relationship.

He had checked into a motel several days prior to the shooting but had gone to recover his belongings from her residence on the night before her death. On the night in question, he was sitting in his car on the parking lot of Rascal’s nightclub where the shooting ultimately occurred when he saw her car drive up, whereupon she told him she would appreciate it if he didn’t remain on the premises. Appellant then drove to Martinique’s bar and had three or four drinks, after which he returned to Rascal’s nightclub and approached the victim, putting his arms around her on the dance floor. According to his testimony, when she nibbled his lip, he backed off and pushed her.

Concerned about the potential disturbance, a bouncer approached the pair and requested that appellant leave. Manno complied, departing ²⁵ again for Martinique’s. After several drinks, he returned to the vicinity of Rascal’s where he saw Flora leaving. When he beckoned for her to come over to the car, he told her how depressed he was and that he wanted to know why the breakup was happening.

He said that he advised the victim that he would rather end it all than lose her and that what he meant was that he would shoot himself. Concerning the events around the shooting, appellant stated: And I thought, there must be something, if I scare her or startle her, fíre a shot out the -window. I reached, I just laid the gun down, cocked it, just fired out the window what I thought was in the air. Never looked, thought [sic].

She had just about reached her car and I looked to the right and she said, she spun around and she spun around [sic] and yelled, “Ronnie, call a doctor, Ronnie, call a doctor,” and I jumped out of the car and ran over. She was going down, hit her knees very hard, fell forward, hit her head very hard. I ran over to her and I said, I said Mary, I was hysterical or in shock. I just said, Mary, what’s happened or something to that effect.

And she must have lost consciousness. I was getting, she didn’t say anything. Appellant asserted that he ran to a telephone booth but could not call for assistance because he had no change. He then “just started to drive,” throwing the weapon out of the car window “somewhere.” He testified that he did not intend to kill Flora and that the shooting was an accident.

Arriving at approximately 1 a.m. on the morning in question, paramedic Steve Yealdhall inserted an “IV” into the victim in an attempt to replace lost fluids, and “military anti-shock trousers” were utilized to push the blood from the victim’s legs to the chest area. According to Yealdhall, when asked what happened to her, Flora responded that her boyfriend, Ron Manno, shot her. Officer James Martin accompanied the victim to the hospital, during which time he heard Flora call for her mother and plead that she did not want to die. Officer Martin described ²⁶ Flora’s condition as being weak and in a state of shock.

Corporal James Chaconas had also arrived on the scene while paramedics were attempting to stabilize the victim. According to Chaconas, once the paramedics succeeded in getting the victim to respond to the question as to who she was, he felt that this would be the last opportunity to ascertain what happened and accordingly he inquired. His testimony regarding her response was: OK. At this time when she replied her name was Mary, I asked her at that point what had happened.

Then she replied that her boyfriend had shot her. My next question to her was, who was her boyfriend. She immediately responded, Ron Manno. I asked her, where did he live?

She said, Brooklyn. And I said, Brooklyn, New York or Brooklyn, Maryland? She said, Brooklyn, Maryland. The paramedics picked her up and took her away.

Flora subsequently died as the result of the gunshot wound. Later, the same day of the shooting, Manno was stopped by the police while operating his vehicle. Officer John Grumbach testified that, at approximately 9:23 a.m., appellant was ordered to leave his car and was advised of his rights but insisted that he “did not want to talk about it.” At approximately 10:05 a.m. at the police station, however, appellant agreed to make a statement, wherein he related that he had gone to the Club Martinique, where he had three drinks and thereafter returned to Rascal’s nightclub where he was rebuffed when he kissed Flora, who was there in the company of a tall, blonde woman. After relating how the bouncer, identified by Detective Brady as Bill Leach, ordered him out of the bar, appellant remained silent until asked why he shot Flora.

He responded by relating how he had gone to see his psychiatrist at the Greater Baltimore Medical Center at 4 or 5 on the morning of August 11 but had never gone inside to see the psychiatrist. He complained that the psychiatrist, Dr. Covey, considered his mental condition to be a joke and, at that point, appellant declined to answer any more questions without the presence of his attorney. Additional facts as are pertinent will ²⁷ be provided where necessary and relevant to the arguments that follow. LEGAL ANALYSIS I. Appellant initially contends that the court’s finding of guilty of first degree murder “was based on a faulty legal premise, i.e., that ‘a specific intent to kill’ is the equivalent of premeditation and deliberation.” We have examined the record transcript of the court’s oral opinion and nowhere find a statement by the trial judge that a specific intent to kill is the equivalent of premeditation and deliberation.

An examination of the relevant portions of the oral opinion is instructive: From here, from that point, his testimony in my opinion becomes incredible. This man was bound and determined on this particular evening to have a further confrontation with this woman, who he deeply loved. Equally, she was determined not to have any further relationship with him and I am convinced he went back looking for her. Now, whether or not he was actually on the parking lot laying in wait and for how long is open for debate.

But even that is not sufficient because the Court of Appeals has said that lying in wait at least at this point in the case law of Maryland, they have not decided whether that’s a sufficient aggravating factor sufficient by itself to raise murder to a level of first degree. So, therefore, when the confrontation took place on the parking lot, and that’s State versus Selby, 319 Md. 174 [ 571 A.2d 1236, 1990 ], it is a question at that point as to what the Defendant intended to do. It is incredible that he suggests that he picked a loaded pistol up from the back seat and after a discussion with her, he without looking fired the pistol and accidentally she was struck. I reject the Defendant’s version with regard to that because it is obvious, even if he were trying to scare her, he is accomplished to some extent with firearms, she left the passenger side of his automobile, was walking to her car, and he doesn’t fire the gun in the car, he doesn’t fire it out ²⁸ the driver’s window, he doesn’t shoot it in the air, he turned and, as he says, I didn’t look, but I don’t believe him and fired it through the passenger window at the victim, who was not very far away from him at all.

He testified that during their conversation, he said, “I’ll end it all rather than lose you.” He wants me to conclude that he was talking about his own suicide, but the fact is his testimony is not credible and, frankly, that coupled with his actions after the shooting leave this Court in a position where it is convinced beyond a reasonable doubt and to a moral certainty that he turned, he had the specific intent to kill, he fired that gun, it struck the victim in the back, she died as a result thereof and, therefore, is inescapable that he’s guilty of murder in the first degree. [Emphasis added.] While it is true, as the State concedes, that the trial court never uttered the magic words “premeditation and deliberation,” patently the court’s analysis proceeded along two tracts, i.e., a consideration of whether the evidence was sufficient “to raise murder to a level of first degree” and a rejection of appellant’s contention that “he without looking fired the pistol and accidentally she was struck.” Significantly, the Court discussed the decision of the Court of Appeals in State v. Selby, 319 Md. at 178-79 , 571 A.2d 1236 . In Selby , the Court of Appeals had determined that it would leave for another day the question of whether lying in wait serves as a sufficient factor, standing alone, to raise the level of murder to first degree or whether lying in wait is but one example of the premeditation and deliberation necessary to prove first degree murder. Bearing in mind that the court was considering whether returning to the parking lot and awaiting the victim’s exit from the nightclub constituted lying in wait as discussed by Selby , the trial court could have only been engaging in a legal analysis to determine whether there was premeditation and deliberation because that indeed was the issue in Selby . Consequently, the trial court concluded that there was sufficient other evidence upon which to base a finding of first degree murder, discounting the theory of lying in wait as necessary for it to enter a finding of guilty of ²⁹ murder in the first degree.

Referring to the point in time when appellant confronted Flora in the parking lot of Rascal’s nightclub, the court said: “It is a question at that point as to what the defendant intended to do.” In other words, the court was alluding to whether the design or plan to kill had formed in appellant’s mind at that time. The court’s analysis continued by concluding that appellant’s assertion that he picked up a loaded pistol from the back seat and accidentally fired the pistol without looking was unbelievable. Bearing in mind that the thrust of appellant’s testimony was that the shooting was accidental, uppermost in the court’s mind as it rendered its oral opinion was a rejection of the theory that the shooting had been an accident. The antithesis of the shooting being accidental, of course, is that it was done intentionally.

It is for that reason that the court dwelled on the factor that indicated the flaws in the accidental shooting theory, ie., that appellant “doesn’t fire the gun in the car, he doesn’t fire it out the driver’s window, he doesn’t shoot it in the air, he turned and, as he says, I didn’t look.” In sum, the trial judge’s focus on the existence of the specific intent to kill was aimed at rejecting appellant’s contention that the shooting was not intentional, but rather accidental. The court attempted to articulate premeditation and deliberation by its finding that it did not believe appellant just happened to have a loaded pistol that he obtained from the back seat of the car at the time he beckoned Flora over to the car. Implicitly, the court was inferring that the fully formed plan to kill the victim existed at the time appellant beckoned the victim to get into his automobile. Appellant does not contend that the evidence is insufficient to support his conviction but rather that the trial judge misapplied the law.

The case sub judice, in precise terms, presents us with a record wherein there is more than ample evidence to support a finding of guilt of first degree murder; and the trial judge, in a non-jury proceeding, determined that “aggravating factors” sufficient to elevate the offense to first degree murder were present but simply failed to articulate the existence of premeditation and deliberation. We do not be ³⁰ lieve, under the circumstances, that the failure of the trial judge to articulate specifically the words “premeditation and deliberation” requires reversal of appellant’s conviction. Had the lower court, by reason of a “faulty legal premise” made a finding of guilt that could have otherwise been supported by different findings of fact, we would be required to reverse. See State v. Gover, 267 Md. 602 , 298 A.2d 378 (1973) (wherein trial court erroneously concluded that defendant was so drunk that he did not know what he was doing, but, in the court’s view, he could not avail himself of the defense of voluntary intoxication because the court did not believe voluntary intoxication could be a defense to robbery, a specific intent crime).

As we have observed, nowhere in the record are we able to find a statement by the trial judge that a specific intent to kill is the equivalent of premeditation and deliberation. Thus, appellant’s assertion that the court’s finding of guilty of first degree murder was based on a faulty legal premise is itself based on a faulty and indeed erroneous factual premise. Here, the trial court engaged in a proper analysis in determining that a necessary element, specific intent to kill, was present in order to reject appellant’s claim that the shooting was accidental. That the trial judge did not articulate the words “premeditation and deliberation” is not fatal in the case before us because, at no time, did the court say that a finding of premeditation and deliberation was unnecessary to support appellant’s guilt of first degree murder. 1 Furthermore, the court noted all of the events leading up to the shooting, including the facts that appellant was bent on having a further confrontation, that he went back to the nightclub looking for her, and that it was appellant who summoned the victim to his car where he possessed the instrument to accomplish the fatal deed.

In view of the overwhelming evidence that appellant ³¹ possessed the fully formed purpose to kill at least from the time he beckoned Flora to get inside his automobile with him and then retrieved the pistol from the rear seat, there was indeed ample evidence from which the court could properly find that there was premeditation and deliberation sufficient to support appellant’s guilt of murder in the first degree. 2 II. Appellant next contends that the seizure of his personal papers found in an envelope in the trunk of his vehicle after his automobile had been impounded was the result of a warrantless search and seizure, “with no applicable exception to the warrant requirement.” On December 9, 1991 the Circuit Court for Baltimore County conducted a hearing on the motion to suppress the evidence recovered from appellant’s automobile. At the conclusion of the hearing on the motion to suppress, the lower court indicated that it would take the motion under advisement as well as the motion to suppress the statement taken from appellant. On January 24, 1992 the lower court indicated that it had received from counsel copies of court decisions, which the court had read; and the court further advised counsel that it had reviewed the notes of the court reporter and was satisfied that Detective Brady had testified that he had been looking for the murder weapon as well as other evidence against appellant.

The court simply stated: “So I am going to rule that the search was appropriate and will allow the items seized from the trunk of the vehicle into evidence. I’ll deny the motion to suppress that search.....” On the second day of the trial on the merits, Detective Peter S. Evans of the Baltimore County Police Department Crime Laboratory identified State’s Exhibit 14, a letter in an ³² envelope that was found in the trunk of the car and that was marked “to the media.” The court overruled the continuing objection of Manno’s counsel and was advised by the prosecutor that she was offering “just the one letter” rather than the package of letters. The letter admitted read: This is a tragedy of untold proportions. Mary knew I loved her — I told her a thousand times.

But it wasn’t enough. Having someone love her wasn’t enough. She needed more. She flirted outrageously.

Her final flirtation was the fatal one. She initiated a conversation with three blacks. How outrageous. To be with a man like me and still need attention from such low-lifes.

What could three blacks off the street contribute to her life? Nothing! Absolutely nothing! What a humiliation to have to endure, and in the presence of so many people.

(Signature) Ron M. . Citing Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925), and Fowler v. State, 79 Md.App. 517, 526-27 , 558 A.2d 446 , cert. denied, 317 Md. 392 , 564 A.2d 406 (1989), the State posits that the Carroll doctrine permits the warrantless search of a motor vehicle where police have probable cause to believe that the vehicle contains contraband and that the exception to the Fourth Amendment warrant requirement is justified because of the exigent circumstances caused by the inherent movability of a motor vehicle. Detective William Brady testified that, upon being directed by Lieutenant Randall Russen, unit commander of the Homicide Section of the Baltimore County Police Department, to return from the murder scene to Baltimore County police headquarters, he arrived in the office of the Fugitive Section at approximately 10:00 a.m. on August 11, 1991. As he, Officer Grumbach and a uniformed Baltimore County police officer conducted questioning of appellant, Manno’s vehicle had been towed from Towson State University to the Baltimore County police headquarters for processing.

Brady testified, “My lieutenant contacted the Crime Lab, told them it was being towed in which was the results of the conversation between myself and Lieutenant Russen about the vehicle and we were looking ³³ for the gun and various pieces of evidence.” The record thus indicates that clearly the police were looking for the murder weapon and any other incriminating evidence. Relying most heavily on Waine v. State, 37 Md.App. 222, 231 , 377 A.2d 509 (1977), and Duncan and Smith v. State, 281 Md. 247 , 378 A.2d 1108 (1977), appellant charges that the instant procedure violates the Fourth Amendment because it is an inventory search, which is in reality a pretext for concealing an investigative police motive. Manno postulates that mere legal custody of his effects, however, does not dispense with constitutional requirements of searches thereafter made, citing Cooper v. California, 386 U.S. 58, 61 , 87 S.Ct. 788 , 17 L.Ed.2d 730 (1967), and United States v. Chadwick, 433 U.S. 1 , 97 S.Ct. 2476 , 53 L.Ed.2d 538 (1977). We note, at the outset, that appellant was in custody at the time that the vehicle in question was impounded and that there was no likelihood that the vehicle would be released from police custody.

We further note that there is no suggestion by Detective Brady that this was an inventory search. Thus, the warrantless search of appellant’s vehicle must be validated on the basis of an exception to the warrant requirement other than an inventory search. Our review of Fourth Amendment case law persuades us that there was indeed probable cause to search Manno’s vehicle and that, once the envelope marked “to the media” was discovered in the translucent container, appellant’s Fourth Amendment right to be free from unreasonable searches and seizures yielded because of the diminished expectation of privacy in a correspondence within an envelope so marked. A review of the development of the case law as it has evolved from the seminal case of Carroll to the lines of authority that have considered containers found in automobiles is helpful in our analysis of the seizure in question.

In 1925, the Supreme Court, in establishing an exception to the warrant requirement for moving vehicles, recognized a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, ³⁴ motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Carroll v. United States, 267 U.S. at 153 , 45 S.Ct. at 285 . In 1977, the Supreme Court again considered the mobility of the object of the search, this time a 200 pound double-locked foot locker containing marijuana. Chadwick, supra.

The federal narcotics agents, in Chadwick , surveilled the defendants as they removed the foot locker from a train and carried it through the station, depositing the locker into the trunk of a car that awaited. The locker was seized and searched as the agents simultaneously arrested the defendants. The government had argued that the search of movable luggage could be considered analogous to the search of an automobile. The Supreme Court, in finding the search unreasonable, held that a person expects more privacy in his luggage and personal effects than he does in his automobile, 433 U.S. at 13 , 97 S.Ct. at 2484 .

The Court also observed that storage facilities are usually more available to accommodate luggage where such facilities may not be available for the storage of vehicles that are seized. Id. at 13, n. 7 , 97 S.Ct. at 2484, n. 7 . Two years after the decision in Chadwick , the Supreme Court in Arkansas v. Sanders, 442 U.S. 753 , 99 S.Ct. 2586 , 61 L.Ed.2d 235 (1979), extended the rule in Chadwick to apply to a suitcase actually being transported in the trunk of a car. Armed with probable cause to believe that the suitcase contained marijuana, they watched as the defendant placed the suitcase in the trunk of a taxi and thereafter pursued the taxi for several blocks, ultimately stopping it.

Although the Court prior to Sanders had applied the Carroll doctrine to searches of integral parts of an automobile itself, it had not extended the doctrine to the warrantless search of personal luggage “merely because it was located in an automobile lawfully stopped by the police.” Sanders, 442 U.S. at 765 , 99 S.Ct. at 2594 . Emphasizing the heightened expectation of privacy in personal luggage, the Court concluded that the presence of luggage in an automobile did not diminish the owner’s expee ³⁵ tation of privacy in his personal items. Id. at 764-65 , 99 S.Ct. at 2593-94 . In United States v. Ross, 456 U.S. 798 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982), officers of the District of Columbia Police Department, upon information