Mung Sen Tu v. State

WILNER, Chief Judge. This is appellant’s second trip to this Court. In November, 1989, he was convicted by a jury in the Circuit Court for Montgomery County of the first degree murder of his wife, Lisa Tu, for which he was sentenced to life imprisonment. In 1990, we reversed that judgment and remanded the case for a new trial because we concluded, based on the evidence presented at a suppression hearing prior to the trial, that a briefcase containing incriminating evidence later used at the trial had been unlawfully seized from appellant’s motel room in Las Vegas.

Tu v. State, No. 120, Sept. Term, 1990 (filed Nov. 19, 1990). On remand, a new suppression hearing was held with respect to the briefcase and its contents, at which new and ⁴⁹⁰ different evidence was presented regarding the seizure. On that evidence, the court again denied the motion to suppress. Appellant was retried and the challenged evidence was admitted, but this time appellant was acquitted of first degree murder, convicted only of second degree murder, and sentenced to 30 years imprisonment.

From the judgment entered on that conviction, appellant has brought this appeal asking: “I. Did the trial court err when it held that evidence this Court previously held to be inadmissible could be admitted into evidence?

II

Did the trial court err when it permitted testimony that certain telephone numbers shown to have been called by Appellant were to prostitutes and adult entertainment agencies?

III

Did the trial court err when it admitted evidence respecting blood spattering and blowback in a case in which the State conceded there was no evidence as to how the alleged murder was committed?

IV

Did the trial court err in admitting hearsay evidence regarding the responses an investigating officer received to his inquiries about the case? V. Did the trial court err when it refused defense counsel’s request for a dual inferences instruction?” We shall affirm. I. UNDERLYING FACTS As we indicated, appellant was charged with murdering his wife, Lisa, to whom he had been married for about 10 years. This was not a routine prosecution, for there were no witnesses to the alleged murder and Lisa’s body was never found.

The State posited that appellant had hidden the body in a couch on which Lisa normally slept during the summer months and then had the couch hauled to a county landfill where it was so compacted with tons of other trash that, by the time the police went to search for it, it was impossible to find. ⁴⁹¹ The State attempted to prove that Lisa had been murdered by showing, first, her sudden and unexplained disappearance on July 12 or 13, 1988. It offered evidence from her friends and relatives that all communication with Lisa ceased as of then, as did financial transactions on her bank accounts and credit cards. The State also showed that blood found in the basement of her home and on the covering of the couch on which she slept was, with a high degree of probability, that of Lisa or a close relative of Lisa’s. Appellant’s criminal agency rested on (1) evidence of appellant’s financial difficulties, an insurance policy on Lisa’s life under which appellant was the beneficiary, deterioration of the relationship between appellant and Lisa, and appellant’s awareness that Lisa was having an affair with another man, all of which went to establish motive; (2) the presence in the house of two knives and appellant’s purchase of at least one handgun, tending to show ability; (3) evidence that, on July 16, appellant arranged for a trash collector to haul away the couch notwithstanding that its condition did not warrant destruction; and (4) appellant’s conduct after Lisa’s disappearance.

Shortly after Lisa’s disappearance, appellant told relatives that she had flown to California to visit a sick friend. That friend testified, however, that she had not been sick, that she had not invited Lisa to visit, and that Lisa did not, in fact, visit her after July 12. After appellant learned that he was a suspect, he flew to Taiwan, returned to Maryland briefly for questioning, then flew to Las Vegas, where, despite telling Mends here that he was looking for Lisa, he sought employment, gambled, and made telephone calls to two adult entertainment agencies and a prostitute. The defense sought to show that Lisa had indeed gone to California.

Appellant produced from United Airlines records evidence that a ticket had been issued in the name of L.L. Tu for a flight on July 14, 1988, from Dulles Airport to Los Angeles and then to San Francisco. The airline record was marked in a way indicating that the ticket had been used from Dulles to Los Angeles. Appellant also presented the testimony of a United Airlines customer service representative, Nan ⁴⁹² cy Mulcahy, who recalled telling a detective in August, 1988, that she saw a woman resembling Lisa board an aircraft for Los Angeles in mid-July of that year. The State responded with testimony from the three passengers on the July 14 flight whose seats were adjacent to the seat to which the ticket related that the seat had been empty.

There was also other evidence that Ms. Mulcahy may have been mistaken.

II

DISCUSSION Suppression of Briefcase And Contents Evidence presented at the first suppression hearing indicated that, following the issuance of a fugitive warrant, appellant was arrested in Las Vegas on September 10, 1988. Two Montgomery County detectives, when apprised of the arrest, flew to Las Vegas where, in cooperation with the local police, they obtained a search warrant for appellant’s motel room. The warrant authorized the search for and seizure of seven categories of items. The application and the warrant were placed into evidence.

In executing the warrant, the police seized the briefcase, which contained various documents and tangible items that did not fall within any of the categories enumerated in the warrant. No evidence was presented by the State as to where the briefcase was located in the motel room or as to the circumstances of its seizure. Faced with the argument that the briefcase and at least some of its contents were not within the authority of the warrant, the State argued that seizure was permissible under the “plain view” doctrine. We rejected that argument because of the lack of any evidence to sustain it.

There was nothing to show that the briefcase or its contents were, in fact, in plain view or that they were immediately recognizable as incriminating. As a result, we reversed the judgment and remanded for a new trial. On remand, the State shifted course. Detective Turner, of the Montgomery County police department, said that he had been mistaken in his earlier testimony that the disputed items had been seized in the execution of the search warrant.

He ⁴⁹³ testified that he and Detective Thomson went to Las Vegas when informed of appellant’s arrest, that appellant gave him permission to search the motel room, and that the warrant was obtained merely “out of an abundance of caution.” In the course of the search, he discovered a laundry receipt hanging in an open closet. Turner said that he seized the item because he believed that it fell within the warrant categories. The other disputed items, he said, had not been seized from the motel room as he had earlier testified but rather had been taken from appellant by the local police at the time of his arrest. Detective Turner said he was given the various items at the Las Vegas County jail in a packet.

He identified a Xerox copy of a Las Vegas Metropolitan Police Department Inmate’s Property Inventory and Release and copies of other of the disputed documents. He said that the copies were made at the Las Vegas jail, and it was upon reviewing them that he realized that he had received the items from the local police and not from the motel room. 1 Detective Thomson corroborated Turner’s current testimony. He said that, except for the laundry ticket, which was found in the motel room closet, the other items were in an envelope maintained by the local police at the jail. He specifically denied that they had been found in the motel room.

The court obviously credited that evidence and found the disputed items, as well as the testimony and evidence derived from them, to be admissible. Appellant makes two complaints about the court’s ruling. First, he urges that he is entitled to some kind of relief because, in contravention of Md. Rule 4 — 252(f), the court omitted to state its findings on the record. Second, he complains that, under the “law of the case” doctrine, the court ⁴⁹⁴ was bound by the earlier ruling of this Court that the items in question were not admissible, and that it was not permissible for the State to relitigate that issue.

Neither complaint has any merit. Md. Rule 4-252 deals with pre-trial motions, such as motions to suppress evidence. Section (f) requires that those motions ordinarily be decided prior to trial and states, in its concluding sentence, that “[i]f factual issues are involved in determining the motion, the court shall state its findings on the record.” At the conclusion of the hearing, the court stated simply that “the State’s position prevails in this case, and the items as requested will be received at trial.” No further explanation was given, which is the point of appellant’s first complaint. The problem with appellant’s position is that there really were no factual issues to be resolved.

The only evidence presented was by Detectives Turner and Thomson, who testified as indicated. There was no controverting evidence. The court could accept the current testimony and the fact that Detective Turner had been mistaken in his earlier statement, which was the State’s position, or not accept it. If the court did not believe the revised explanation, it would indeed have been bound by our earlier ruling and required to suppress the evidence.

But if it chose to credit the new explanation, then, in the absence of any countervailing evidence, there would be no reason to suppress the evidence. The court’s brief remark — that the State’s position prevails — suffices, under these circumstances, as a statement of its finding. Appellant’s second argument is that our earlier conclusion that the evidence was inadmissible bars any relitigation of that issue in that it became the “law of the case.” That argument takes a far too global and far too simplistic view of the “law of the case” doctrine. To be sure, the doctrine has occasionally been stated in very broad terms.

In Chayt v. Board of Zoning Appeals, 178 Md. 400, 403 , 13 A.2d 614 (1940), for example, the Court, quoting from Waters v. Waters, 28 Md. 11, 22 (1867), declared that its decision “once pro ⁴⁹⁵ nounced in any case is binding upon the court below ... and cannot be disregarded or called in question. It is the law of the case binding and conclusive upon the parties, not open to question or examination afterwards in the same case.” See also Fid-Balto. Bank v. John Hancock, 217 Md. 367 , 142 A.2d 796 (1958); Loveday v. State, 296 Md. 226 , 462 A.2d 58 (1983). In other cases, however, the Court has made clear that the doctrine applies only where the facts upon which the first appellate decision was premised are substantially the same as those produced upon remand.

This caveat was clearly enunciated at least as early as Frisby v. Parkhurst, 29 Md. 58 (1868), a dispute over the proceeds from the sale of property which depended, in part, on whether the decedent, Elizabeth Frisby, owned the property in fee or had only a life estate. Under the will of her father, the property was devised to Ms. Frisby’s mother for life, with the remainder to Ms. Frisby. Under the mother’s will, however, the property was devised to Ms. Frisby for life, with a remainder to Ms. Frisby’s son. Regrettably, Ms. Frisby contracted a number of debts, and, upon her death, her creditors and her son made conflicting claims on the property.

The principal issue in the first proceeding was whether Ms. Frisby had elected to take the property under the will of her mother instead of under the will of her father, in which event she would have a life estate only, but the pleadings also raised the question of whether, apart from any formal election, she took the life estate pursuant to an agreement with her mother. In the first appeal, from an interlocutory injunction pending a final hearing, the Court of Appeals held that no election had been made and that there was insufficient evidence to show an agreement; it affirmed the injunction and remanded the case for further proceedings. On remand, further pleadings were filed and more evidence was produced tending to establish an agreement between Ms. Frisby and her mother. Nonetheless, the trial court, believing itself bound by the conclusions announced in the first appeal, concluded that Ms. Frisby had the fee simple estate and distributed the property to her creditors. ⁴⁹⁶ In the second appeal, the Court of Appeals reversed.

Rejecting the appellees’ argument that the trial court was bound by the Court’s earlier decision that there was no agreement, the Court observed: “It has been urged that the decision upon the former appeal has settled the questions which the present appeal presents for consideration of the Court, and is conclusive upon the parties and the Court. It is perfectly clear that, if the same questions are presented upon this appeal as upon the former, and upon the same state of facts, the former decision must stand as the law of this case and the parties and this Court must be bound by it.” 29 Md. at 65 (emphasis added). In that regard, the Court noted that, in the first appeal, the evidence regarding an agreement between Ms. Frisby and her mother was uncertain, ambiguous, and hable to misconstruction. Much clearer evidence was presented on remand.

Accounting for that, the Court held: “The state of facts, thus presented, is very different from the proof upon the former appeal, and it is admitted by the counsel for the appellees that the evidence must be the same to make the decision upon the former appeal binding this. This view of the case is also sanctioned by State vs. Reigart, 1 Gill, [1] 27.” Id. at 67 . A similar view was taken in Diggs v. Smith, 130 Md. 101 , 99 A. 952 (1917), although in that case, the Court did not find the evidence presented on remand sufficiently different to warrant a different result. The case is significant in that, unlike Frisby , the first appeal was not from an interlocutory order but from a final judgment.

The issue was whether a will was procured by fraud; a jury found that it was and the caveatee appealed, arguing that the evidence was insufficient to sustain that verdict. The Court of Appeals agreed, holding that the jury should have been instructed that there was no legally sufficient evidence from which it could find that the will was procured by fraud. It nonetheless remanded for a new trial. ⁴⁹⁷ Smith v. Diggs, 128 Md. 394 , 97 A. 712 (1916). On remand, new evidence was presented, but the trial court withdrew the case from the jury, finding insufficient evidence that the will was procured by fraud.

In the second appeal, the Court noted that its decision in the first appeal “fully settled the law of the case, so far as the facts then presented were concerned ” and held that “[a]ll that is necessary upon this appeal is to consider to what extent additional testimony adduced at the second trial should operate to modify the conclusion then reached.” 130 Md. at 102 , 99 A. 952 (emphasis added). See also Maryland Coal Co. v. Baker, 85 Md. 688, 689 , 36 A. 768 (1897). This principle, applied in these older Maryland cases, is well established nationally. The “law of the case” doctrine does not preclude reconsideration of an issue decided in an earlier appeal if the evidence on remand is substantially different.

See Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703 (9th Cir.1990); J.E.T.S., Inc. v. U.S., 838 F.2d 1196 (Fed.Cir.), cert. denied, 486 U.S. 1057 , 108 S.Ct. 2825 , 100 L.Ed.2d 926 (1988); Sanders v. Sullivan, 900 F.2d 601 (2d Cir.1990); Coty v. Ramsey Associates, Inc., 154 Vt. 168 , 573 A.2d 694 (1990); Harrison v. Dorsey, 184 Ga.App. 870 , 363 S.E.2d 151 (1987), cert. denied, 184 Ga.App. 870 , 363 S.E.2d 151 (1988); Bismarck Hotel Co. v. Sutherland, 175 Ill.App.3d 739 , 125 Ill.Dec. 15 , 529 N.E.2d 1091 , cert. denied, 124 Ill.2d 553 , 129 Ill.Dec. 147 , 535 N.E.2d 912 (1988); Steen v. Colombo, 799 S.W.2d 169 (Mo.Ct.App.1990). A case very close in point is State v. Grosvenor, 402 N.W.2d 402 (Iowa 1987). Pursuant to a search warrant, police found contraband in a hall closet outside the defendant’s room. The police also found $877 in the defendant’s wallet, including certain marked bills that had earlier been given to an informant to make a controlled buy.

In the