McCree v. State

Moylan, J., delivered the opinion of the Court. The appellants, Michael Leon McCree, Robert Lavern Dixon and John Junior Garris, were tried jointly by a Baltimore City jury, presided over by Judge Basil A. Thomas, upon charges of murder and armed robbery. The appellants McCree and Dixon were convicted of murder in the first degree and armed robbery and were sentenced to consecutive terms of life imprisonment and ten years. The appellant Garris was convicted of second-degree murder and armed robbery and was sentenced to consecutive terms of thirty years and fifteen years.

All three appellants make the following contention upon appeal: (1) That they were prejudicially denied their motions for a trial severance. The appellants Dixon and Garris make the following joint contention: (1) That the trial judge erroneously refused to permit them to question a State’s witness concerning a prior but constitutionally invalid conviction. The appellant Garris alone makes the following contention: (1) That the evidence was not legally sufficient to have permitted the cases against him to go to the jury. The appellant Dixon alone makes the following contention: (1) That the trial judge erroneously refused to exclude the fruits of an unconstitutional search of and seizure from an automobile operated by him.

The appellant McCree alone makes the following contentions: (1) That the trial judge erroneously refused to exclude the ⁸⁵ fruits of a search of his belongings taken from the desk clerk of a New York hotel just subsequent to McCree’s arrest; (2) That the trial judge erroneously denied his Motion for Mistrial on the ground of an improper comment by the State’s Attorney in closing argument to the jury; (3) That the trial judge erroneously permitted the State’s Attorney to ask leading questions to key State’s witnesses; and (4) That the trial judge erroneously refused to strike juror Jenny Malone for cause. In order to set the stage factually for consideration of the severance contention and for consideration of the two distinct search and seizure contentions, we will set out the involved and at times circumstantial web of evidence linking in all three appellants. Since only the appellant Garris has questioned the legal sufficiency of the evidence against him, we will, for the sake of judicial economy, focus upon him and discuss the significance of the evidence against him as we recount the broader narrative. In the course thereof, we will, without pause, discuss the physical evidence as well as the testimony because Garris himself does not, upon appeal,, question the constitutionality of the searches and seizures.

The physical evidence would, therefore, be admissible against him, notwithstanding its fate in the cases against the other two appellants. The evidence established unequivocally that all three appellants were homosexual, were female impersonators and were prostitutes. The same was true with respect to at least several of the witnesses in the case. Throughout the testimony, witnesses referred to any of the three appellants by the feminine pronouns “she” or “her” rather than by the masculine pronouns.

The three appellants had, moreover, female names which were used more regularly in the testimony than were their male names. For sake of reference, we list them below: Robert Dixon — Laverne, Sweet Thing or Cobra Michael McCree — Lisa John Garris — Theresa ⁸⁶ The murder and robbery victim, Saul Charles Friedenberg, was a sexual client of Robert “Laverne” Dixon. The murder occurred at some time after 2 p.m. on July 8, 1974. Mr. Friedenberg left his home that morning for work.

He was wearing a yellow-gold Bulova wristwatch and a sapphire ring and driving a 1973 yellow Cadillac. When he failed to return home by 6 p.m. that evening, his wife became apprehensive. On the following day, July 9, 1974, his wife filed a missing person’s report. The murder occurred in the second-floor rear apartment of the appellant Robert “Laverne” Dixon at 1715 N. Calvert Street.

The body was found three days later, on July 11,1974, in a closet, the door to which had been nailed shut from the outside. A refrigerator had been pushed in front of the door. The body lay face down on the floor. A towel was draped over the back of the head.

The ankles were bound. The hands were tied behind the back. His shirt and his jacket were missing. The zipper to his trousers was open.

One shoe was found under his head and the other was lying in an otherwise empty closet. The watch and the sapphire ring were missing as were all of Mr. Friedenberg’s credit cards. The yellow Cadillac was also missing. Mr. Friedenberg had been strangled with a length of insulated electric wire.

The evidence demonstrated beyond peradventure of a doubt that the appellants Dixon and McCree had participated in the murder and robbery. Indeed, they do not contest the legal sufficiency of the evidence against them. Our focus will be upon the case against the appellant Garris, who does contest the legal sufficiency of the evidence against him. In a jury trial, the test as to whether the evidence was sufficient in law to permit the trial judge properly to deny the appellant’s motion for a judgment of acquittal and to submit the case to the jury is whether the admissible evidence adduced at the trial either showed directly, or circumstantially, or supported a rational inference of, the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the appellant’s guilt of the offense charged.

Williams v. State, 5 Md. App. 450, 459 ; Metz v. State, 9 Md. App. 15, 23 . We conclude that ⁸⁷ the evidence against the appellant Garris was sufficient to permit the jury to be convinced of his guilt beyond a reasonable doubt. Janice Alexander, an admitted prostitute, lived at 1707 N. Calvert Street, just four doors south of the residence of the appellant Dixon. She had known Dixon for over a year.

She had visited his apartment and she knew him to be both a female impersonator and a prostitute. She was sitting on her front steps at approximately 2 p.m. on July 8, 1974, when she saw a yellow Cadillac drive up and stop in front of the appellant Dixon’s apartment. She saw the appellant get out and enter his apartment. He was dressed in female clothing.

She later identified photographs of the deceased as photographs of the white man who drove up in the Cadillac with Dixon. That man followed Dixon into the apartment approximately one minute later. She had noticed Dixon and Mr. Friedenberg converse for a few minutes before Dixon, later followed by Mr. Friedenberg, entered 1715 N. Calvert Street. Shortly thereafter, Mrs. Alexander noticed the other two appellants, Michael McCree and John Garris, drive up in a red Maverick automobile.

She was acquainted with both them. She knew Garris only as “Theresa.” The two had a baby with them. They parked in an alley. A brief conversation ensued between Mrs. Alexander and the two, in the course of which they declined to give her a ride to the 2000 block of N. Calvert Street.

McCree, in the presence of John “Theresa” Garris, asked Mrs. Alexander where “Laverne” was. She replied that “Laverne” was “upstairs with a trick.” She defined the word “trick” as connoting a man who pays for sexual pleasure. McCree, still in the presence of Garris, replied, “that must be the car,” indicating the yellow Cadillac. McCree and Garris handed the baby temporarily to Mrs. Alexander, who kept it while McCree and Garris went back into the alley behind the rear of 1715 N. Calvert Street.

They returned about ten minutes later. Mrs. Alexander testified that as McCree and Garris were standing in her presence, McCree said, “We should bust this man in the head and take his money and car.” Mrs. ⁸⁸ Alexander volunteered the observation that it was a stupid idea. The two men then left her presence and then went back in the alley behind 1715 N. Calvert Street. Mrs. Alexander left the neighborhood at that point.

When she returned later that afternoon, she noticed that the Cadillac was gone. She learned from Robert “Laverne” Dixon’s roommate that Dixon and the other two appellants had gone to New York. Dwight Leroy Thomas testified that he had been living at 1715 N. Calvert Street for approximately two months prior to July 8, 1974, as the roommate of the appellant Dixon. Dixon actually rented the apartment but Thomas paid the rent.

Dixon had no regular job but got’ money occasionally “from friends and people he met.” Thomas acknowledged that Dixon sometimes brought men to the apartment. Dixon contributed what he could to the rent and the household expenses. Thomas testified that he and Dixon were lovers and that Dixon habitually dressed as a female. Thomas worked at a restaurant in Pikesville throughout the day of July 8,1974.

He returned home at approximately 5 p.m. When he entered his apartment, he noticed broken glass on the floor. Later police investigation revealed that there were also bloodstains on both the floor and on a curtain dividing two rooms of the apartment. As Thomas began to pick up the broken glass from the floor, the appellant McCree walked into the room from the rear or kitchen area of the apartment.

McCree indicated that he had broken a bottle and had cut himself in the course of picking it up. Thomas continued to pick up the broken glass. He then heard voices and walked to the bedroom part of the apartment where he found the appellant Dixon and the appellant Garris and a baby. Dixon was packing his clothes for a trip to New York.

Shortly thereafter, Thomas went downstairs to bid the threesome goodbye. Both the yellow Cadillac and the red Maverick were parked together in the alley behind 1715 N. Calvert Street. Dixon and McCree drove off in the Cadillac and Garris followed in the red Maverick. Dixon indicated that they would be gone a couple of days.

Over the course of the next several days, Thomas began to detect a stronger and stronger odor in the apartment and ⁸⁹ began to notice an ever-increasing accumulation of flies. On July 11, he moved the refrigerator from in front of the closet door and noticed that the door was nailed shut. He tried to pry it loose. He testified, “I just barely had it cracked and could see something in it.

What, I didn’t know.” Thomas immediately called the police and informed them that “something was up in the closet, a body.” We notice at this point in the narrative that the appellant Garris, who was with the appellant McCree and the baby in the neighborhood of 1715 N. Calvert Street at approximately 2:30 p.m., is still with McCree and the baby (and now with the appellant Dixon as well) inside 1715 N. Calvert Street at 5 p.m. At the earlier time, Garris had been with McCree as McCree discussed “busting the man on the head and taking his money and car.” Garris and McCree had then walked to the alley behind 1715 N. Calvert Street. In the meantime, the yellow Cadillac, which Garris realized belonged to Dixon’s “trick,” had been moved from the front street to the rear alley. The Cadillac was one of the two automobiles in which the combined party departed for New York.

When Thomas returned home, Garris was with his two codefendants in the apartment. That apartment within the preceding two hours had been not simply the scene of the murder but also the scene of reasonably elaborate efforts first to bind the victim hand and foot and then to hide the dead body. The door had been nailed shut and the refrigerator had been moved in front of it, all by approximately 5 p.m. As subsequent recounting of testimony will reveal, Garris was, moreover, in possession of some of the effects of the deceased robbery and murder victim.

At some time during that afternoon, yet a fourth person, Bruce “Pepsie” Johns, had been approached at his home at 317 E. North Avenue by the appellant Dixon and informed that the whole group would shortly be leaving for New York and that Johns should come along. Johns was also a female impersonator and a prostitute. Dixon informed him, “We beat a trick and took his car.” Johns was given about an hour to get packed and was to meet the others at 1715 N. Calvert ⁹⁰ Street. By the time he got to the intersection of North Avenue and Guilford Avenue, however, he was met by his three companions, driving the two automobiles.

Johns testified that before leaving Baltimore City, both automobiles drove to a pawnshop on Pennsylvania Avenue where Dixon and McCree went in and pawned the gold watch. During the subsequent ride to New York, the group stopped a number of times along the way and switched automobiles, with all three appellants taking a turn in each of the cars. At some point during the journey, Dixon repeated references to Johns about having beaten a trick and taking his car and then telling Johns, “Don’t worry about it.” Because of the constant switching of drivers, Johns could not testify with any certainty as to whether McCree or Garris were present at the time of such conversation. The whole group arrived in New York at approximately 11 p.m.

They parked the automobiles and walked around for a time. Later during the day of July 9, all three appellants and Johns and one Kim Wright, checked into and shared a single room at the Bond Hotel in Greenwich Village. Johns testified that he had known all of the appellants for a period of some years at least. While at the Bond Hotel, an argument broke out between the appellant Garris and the appellant McCree over the use of an Exxon credit card.

McCree wanted to use it to get some gasoline. Garris insisted that they could not use it. Johns observed the Exxon card, as well as an American Express credit card, a Saks Fifth Avenue card and a Stratton Inn card. He observed that they bore the name “Friedenberg.” The following evening, when the group had dinner at an Italian restaurant named Valentino's, Garris paid for the meal with Friedenberg’s American Express credit card.

The next witness was Kim Wright, a New York resident, who had known Dixon well for some years. Kim Wright was also a female impersonator and prostitute. “Kim” met the group at approximately 5 a.m. on the morning following their arrival in New York. He recalled McCree telling him, “We killed a man and took his car.” Although he did not ascertain precisely who was encompassed within the ⁹¹ pronoun “we,” he stated that the appellant Garris was present at the time the statement was made to him by McCree. McCree elaborated that they had tied the man up and thrown him in a closet. “Kim” was present at the meal at Valentino’s, where John “Theresa” Garris paid for the meal with the credit card.

In reference to the use of the credit card, Garris assured “her” that “we weren’t going to get busted.” On August 4, 1974, McCree was arrested in a New York hotel. Seized from him at that time was the pawn ticket for the victim’s wristwatch. Three days later, on August 7, 1974, the appellant Dixon was arrested in Delaware, while driving the victim’s