McDonald v. State

KARWACKI, Judge. James Franklin McDonald, the appellant, was convicted by a jury in the Circuit Court for Montgomery County (Mitchell, J.) of attempted second-degree murder, assault with intent to murder, assault with intent to maim, and battery. The convictions were merged for purposes of sentencing into assault with intent to murder. The trial judge sentenced the appellant to thirty years imprisonment and ordered him to make restitution in the sum of $45,483.

In challenging that judgment the appellant contends: I. The trial court lacked jurisdiction to try the offense; II. The trial court erred in admitting evidence seized in the search of the appellant’s car and bedroom; III. The state failed to disclose material and exculpatory evidence; IY. The trial court erred in admitting photographs of the victim into evidence and in allowing the victim to testify; V. The trial court improperly instructed the jury; and VI.

The prosecutor committed reversible error in closing argument. At about 9:00 p.m. on February 22, 1983, the appellant and Sandra Magee arrived at the Flaming Pit Restaurant in Gaithersburg, Maryland. Shortly after 9:00 p.m., Ms. Ma-gee called her daughter, Glenna Magee, and told her that she and the appellant were on their way home. They left the restaurant at about 9:30 p.m. in the appellant’s car, ⁴⁶⁶ leaving Ms. Magee’s car in the restaurant parking lot.

Each had consumed a portion of one drink at the restaurant. At approximately 2:00 a.m. the following morning, the appellant and Ms. Magee arrived at the Germantown, Maryland home they shared with Ms. Magee’s daughters, Glenna and Kimberly, ages 18 and 11 respectively at the time of the occurrence. Glenna witnessed the appellant carrying Ms. Magee into the house. After she noticed that her mother appeared injured, Glenna ran to her boyfriend’s house a mile away to call the police.

When the police • arrived, they were admitted by the appellant. He told the police that Ms. Magee was too drunk to come to the door and then allowed them to come in to check on her condition. The police saw that Ms. Magee appeared to be seriously hurt. When they inquired about her injuries, the appellant responded that after leaving the Flaming Pit Kestaurant at approximately 1:30 a.m., Ms. Magee’s heel on her shoe broke causing her to fall in the restaurant parking lot.

The appellant added that when she attempted to regain her balance, Ms. Magee fell several more times. Believing that Ms. Magee required medical attention, the police had members of the fire department’s paramedic squad come into the house to treat her. Shortly thereafter, Ms. Magee was taken by ambulance to the hospital. The appellant was then placed under arrest.

At approximately 6:30 p.m. on the day of the appellant’s arrest the police returned to the house and were admitted by Ms. Magee’s daughter, Glenna. The police searched the bedroom shared by the appellant and Ms. Magee and seized several items including bed linen, towels and a wrist watch. After leaving the house the police conducted a visual examination of the exterior of the appellant’s car which was parked in front of the house. The police looked through the windows into the car’s interior and noticed a number of items of possible evidentiary value.

The vehicle was then towed to the Germantown police station and impounded. ⁴⁶⁷ Thereafter the car was photographed and thoroughly searched pursuant to a search warrant. At trial, evidence was adduced concerning the nature and severity of Ms. Magee’s injuries. Expert medical witnesses testified that Ms. Magee’s injuries could not have been sustained in a fall and were caused by multiple severe blows with a blunt instrument. Further testimony indicated that she suffered significant brain damage and memory loss.

Ms. Magee herself testified, but due to the extent of her injuries was unable to remember anything about the night of the incident. Swabbings from the appellant’s fingernails, as well as blood stains from the appellant’s car, the clothing of the appellant and Ms. Magee, and hair samples found in the appellant’s car were sent to the FBI for analysis. Blood which matched that of Ms. Magee was found in the appellant’s car and on the shirt and blue jeans worn by the appellant. The fingernail swabbings were inconclusive.

It was determined that of the hair samples taken from the appellant’s car a number had been forcibly removed from the heads of the appellant and Ms. Magee. Forcibly removed human hair which did not match the hair of either the appellant or Ms. Magee was also found in the car. I. The appellant charges that the Circuit Court for Montgomery County lacked jurisdiction to hear this matter because the State failed to prove that the crime occurred within the territorial boundaries of Maryland. Questions of jurisdiction, as distinguished from venue, 1 can always be ⁴⁶⁸ raised for the first time upon appeal.

Md. Rule 1085; Tate v. State, 236 Md. 312 , 203 A.2d 882 (1964); Bowen v. State, 206 Md. 368 , 111 A.2d 844 (1955); Heath v. State, 198 Md. 455 , 85 A.2d 43 (1951). It is fundamental that jurisdiction resides solely in the courts of the state where the crime is committed. Huntington v. Attrill, 146 U.S. 657 , 13 S.Ct. 224 , 36 L.Ed. 1123 (1892), Urciolo v. State, 272 Md. 607 , 325 A.2d 878 (1974), Bowen v. State, supra; 1 Wharton’s Criminal Law § 14 (Toreia 14th ed. 1978); R. Leflar, American Conflicts Law § 111 (3d ed. 1977); 21 Am.Jur.2d, Criminal Law, § 343. It is equally well settled, however, that the situs of the commission of a crime may be established by circumstantial evidence.

Breeding v. State, 220 Md. 193 , 151 A.2d 743 (1959). In the instant case, the evidence supports an inference that Ms. Magee’s beating by the appellant took place in Montgomery County, Maryland. There was evidence adduced at trial to show that the appellant and Ms. Magee were seen leaving the Flaming Pit Restaurant in Gaithersburg, Maryland at approximately 9:30 p.m. Further, Glenna Magee testified that she observed the appellant carry Ms. Magee into their Germantown, Maryland ⁴⁶⁹ home at 2:00 a.m. the following morning.

The appellant, on the other hand, cannot point to even a scintilla of evidence which would indicate that the crime was committed outside of Maryland. Rather he speculates that the location of the Flaming Pit Restaurant is such that in the period of time during which the whereabouts of the appellant and Ms. Magee could not be shown, they could have traveled into several other states as well as the District of Columbia. It is incumbent upon the appellant to do more than make a bare allegation that the crime might have occurred outside of Maryland in order to sufficiently generate the issue of lack of jurisdiction. Carroll v. State, 19 Md.App. 179 , 310 A.2d 161 (1973), Adair v. U.S., 391 A.2d 288 (D.C.App.1978); State v. McDowney, 49 N.J. 471 , 231 A.2d 359 (1967).

In Carroll , we concluded that where an agreed statement of facts offered at trial demonstrated jurisdiction to be in Maryland, “jurisdiction may not now be defeated in this Court by the bald, self-serving averment of the appellant that he has now determined that the offense was committed dehors this State.” Id. 19 Md.App. at 182 , 310 A.2d 161 (emphasis in original). Based upon the evidence presented at trial we find the appellant’s suggestion that the trial court was without territorial jurisdiction to try his case unconvincing.

II

The appellant next challenges the admission of evidence at trial which was obtained pursuant to a search of the appellant’s car and Ms. Magee’s bedroom. The appellant’s attack upon the seizure and ultimate search of his car is without merit. After his arrest, the officers visually inspected the exterior of the appellant’s car. This visual inspection did not offend the appellant’s Fourth Amendment privacy interest.

Cardwell v. Lewis, 417 U.S. 583 , 94 S.Ct. 2464 , 41 L.Ed.2d 325 (1974). Following that inspection the officers determined that it would be necessary to impound the car. Inasmuch as there was probable cause to arrest ⁴⁷⁰ the appellant and probable cause to believe that his car contained evidence of the crime, the police officers’ decision to impound the automobile was valid. Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970).

The police then obtained a proper search warrant before searching the interior of the vehicle. We see no illegality in either the seizure or the search of the appellant’s car. Therefore, the fruits of that search were properly admissible at trial. The appellant further asserts that certain other evidence should have been suppressed at trial as it was seized pursuant to an illegal search of the bedroom shared by the appellant and the victim.

The appellant’s challenge to the admissibility of this evidence is based upon his claim that Ms. Magee’s daughter, Glenna, did not have authority to give consent to the bedroom search. We find this second evidentiary challenge equally meritless. Premises may be searched without a warrant when voluntary consent to search the premises is given. U.S. v. Matlock, 415 U.S. 164 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974).

The prosecution is not limited to proof that the consent was given by the defendant. The search will be deemed valid if voluntary consent is obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. Common authority rests on a mutual use of the premises by persons having joint access or control for most purposes. Id. at 171 n. 7, 94 S.Ct. at 993 n. 7.

The appellate courts of Maryland have on numerous occasions recognized that voluntary third party consent of one possessing common authority over or sufficient relationship to the premises will justify a warrantless entry into a dwelling. Nestor v. State, 243 Md. 438 , 221 A.2d 364 (1966); McCray v. State, 236 Md. 9 , 202 A.2d 320 (1964); Jones v. State, 13 Md.App. 309 , 283 A.2d 184 (1971), cert. denied, 264 Md. 749 (1972). In this case, it is clear that Ms. Magee’s 18 year old daughter, who shared the house with her mother and the ⁴⁷¹ appellant, gave voluntary consent to the admission of the police into the home. It is improbable that Glenna Magee was coerced or intimidated by the police.

On the contrary, it was Glenna’s earlier call to the police that led to the appellant’s arrest, indicating her willingness to cooperate with them. Further, we find that Glenna had sufficient authority to give a proper consent to the search of her mother’s bedroom. When the police arrived at the home, Glenna told them that her mother owned the house and that she, Glenna, lived there. Particularly in view of the mother’s incapacity, the adult daughter’s status as a resident of the house and as a close relative of the owner gave her the authority to consent to a search of her mother’s bedroom.

Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971); Collins v. State, 39 Md.App. 165 , 384 A.2d 120 , cert. denied, 283 Md. 732 , 734 (1978); see also In re Anthony, F., 293 Md. 146 , 442 A.2d 975 (1982), where the Court of Appeals held that a teenage girl could give valid consent to a police entry for the purpose of securing the arrest of her brother. Additionally, there was no evidence to indicate that the daughter was routinely dissallowed entry into her mother’s bedroom. Although the appellant testified that Glenna had to obtain permission before entering the bedroom, the record is silent as to whether the door was kept locked, or that Glenna was instructed to knock