Nutt v. State

Menchine, J., delivered the opinion of the Court. Marvin Aloysius Nutt was tried before Judge Basil A. Thomas in the Criminal Court of Baltimore, under indictments 2902, 2903 and 2904/1971. Under indictment 2902 (6 counts) defendant was found guilty under count one, possession of heroin with the intent to manufacture or distribute) count three, possession of cocaine with intent to manufacture or distribute; count five, possession of controlled paraphernalia, and count six, possession of other controlled paraphernalia. Count two was merged in count one; count four was merged in count three.

He was sentenced to ten years confinement under count one, with concurrent sentences of the same or lesser terms under counts three, five and six. Under indictment 2903 defendant was found guilty of possession of marijuana. The one year sentence was concurrent with sentence in 2902. Under indictment ⁶⁹⁸ 2904 defendant was found guilty of maintaining a common nuisance.

The one year sentence was concurrent with sentence in 2902. This appeal mounts a dual attack: (a) upon use of evidence alleged to have been seized by unlawful search, and (b) upon the legal sufficiency of the evidence to convict under any count of all indictments. Search and Seizure In the first prong of attack upon the search and seizure, appellant seeks reversal upon the ground that neither the original warrant and affidavit, nor copies thereof were admitted in evidence and the error was compounded by failure to incorporate either within the original record on appeal. It is true that neither the original warrant and affidavit, nor copies thereof were incorporated within the record transmitted to this Court.

We have held that it is the responsibility of the appellant to include in the record all matters and issues he desires this Court to review on appeal. Gray v. State, 10 Md. App. 478, 488 , 271 A. 2d 390, 397 . However, the record showed that documents purporting to be copies of the warrant and affidavit were presented to, examined by and ruled upon by the trial judge on appellant’s motion to suppress. The record also showed that testimony was taken as to the whereabouts of the missing originals; the nature of the search for the same; and the authenticity of the copies.

Under this circumstance, and because the substantive evidence offered in the case dealt solely with contraband seized under the warrant, this Court, acting sua sponte, directed the Clerk to obtain the documents, have the same certified by the trial judge as the documents ruled upon by him, and to incorporate the same in the record. This has been accomplished. At the conclusion of the testimony on the motion to suppress the State offered the carbon copies now in the ⁶⁹⁹ record, and arguments of counsel covering nine pages of the transcript were had and recorded. At the conclusion of the arguments of counsel, the trial judge then said at page 49 of the transcript: “First of all, let me say I am satisfied that the original warrant and return was not intentionally lost, or destroyed, by the State in this case, or by the Police Department.

And further I am further satisfied that the copy, based on the police officer’s testimony, is an accurate duplicate or carbon of the contents of the original warrant, although it lacks several things. It lacks the date, it lacks the signature of the affiant, and signature of the Judge. It also laJxs information regarding the return. I am satisfied from the officer’s testimony that he was the affiant, and I am satisfied from the officer’s testimony that Judge Finnerty did sign the warrant.

I am satisfied from the officer’s testimony that the warrant was executed; I am satisfied from the officer’s testimony that the warrant was returned to Judge Finnerty under the circumstances, and I am also satisfied that the officer has checked his own file, and according to his testimony did check the file of the Clerk of the Criminal Court of Baltimore City, where returns are supposed to be sent, and although he personally only checked this morning the records of the Chief Clerk of the District Court, and said that he spent an hour and a half searching those records, wasn’t able to find any, I am satisfied that the loss has been sufficiently established to warrant the admissibility of the secondary evidence, and therefore the objection to the introduction is overruled.” It is plain from the above that the absence of the copy of the warrant and of the affidavit as exhibits at the ⁷⁰⁰ most is a clerical misprision. Maryland Rule 1027 a authorizes this Court to direct by order that “an error in the record shall be corrected and an omission in the record supplied.” The absence of the copy of the warrant and affidavit from the original record is not cause for reversal in the light of the trial court’s certification that the documents now before us, are, in fact, the documents presented to, examined by and ruled upon by him on appellant’s motion to suppress. We turn, then, to the question whether sufficient showing was made that the original documents were lost, and whether the proffered copies were admissible as secondary evidence of the same. The general rule that the contents of documents may be furnished by secondary evidence when the originals have been lost or destroyed, is firmly established in this State.

It was held applicable to search warrant cases in Anderson v. State, 9 Md. App. 532, 539 , 267 A. 2d 296 , wherein it was also made clear: “* * * that whether or not the loss has been sufficiently established to warrant the admissibility of the secondary evidence is largely in the discretion of the trial court; * * * 99 We have previously recited the findings of fact by, and the rulings of the trial judge with respect to both questions. It would seem to serve no useful purpose here to recite at length the testimony presented upon the questions, beyond the statement that a witness, one of two affiants to the application and affidavit for the original warrant, gave testimony that both affiants personally were sworn by Judge Finnerty of the District Court on July 9 and made oath as to the matters contained in the affidavit; that the judge issued the warrant; that he became aware of the missing document about thirty days before trial when summoned to appear at trial; that he searched all files of his Squad, the records of the Criminal Court of Baltimore City, where warrants including warrants issued by District Court judges habitually are kept, and the Clerk’s office of the District Court — all without ⁷⁰¹ finding the missing documents. The only other evidence about the missing documents was a stipulation that inquiry to Judge Finnerty disclosed that the judge did not remember whether he signed the warrant on July 9th, and did not recollect the warrant itself. The witness also testified that the copies presented to the court were made in the regular course of police business; were taken from the Narcotics Squad file; were identical in every respect to the original warrant and affidavit and that all blanks were complete in the original.

Appellant suggests that the case falls within Campofreda v. State, 15 Md. App. 693 , 292 A. 2d 703 . Campofreda did not depart in any respect from the decision in Anderson, supra, as clearly appears when, after announcing required reversal, this Court said at page 702: “It may well be that on a retrial of this case the State will produce the original warrant, or the “copy” made sufficient by other secondary evidence.” Campofreda obviously differs from the subject case on its facts. There, the original warrant was not shown to be lost, nor the copy observed by the trial judge authenticated in any respect. It thus appears here, as was the case in Anderson, supra, that there was evidence to support the trial court’s conclusion that the original warrant and affidavit were not intentionally lost; that there was an adequate search for their discovery and that the copies were sufficiently authenticated to establish the contents of the original.

We see no abuse of discretion by the trial judge in admission of the copies as secondary evidence of the warrant and affidavit. It has been declared in decisions almost beyond enumeration that a judge may issue a search warrant when presented with an application and affidavit giving him probable cause for the search. Examples are: U. S. v. Ventresca, 380 U. S. 102 ; Buckner v. State, 11 Md. App. 55 , 272 A. 2d 828 ; Hudson v. State, 16 Md. App. 49 , 294 A. 2d 109 , and cases therein cited. ⁷⁰² The manner by which such probable cause may be shown was lucidly stated in Moore v. State, 13 Md. App. 711, 715 , 284 A. 2d 614 , 616: “Thus probable cause may be shown in the affidavit by a statement by the affiant 1) of his direct observations, or 2) of information furnished the affiant by someone else, named or unnamed, or 3) of a combination of the direct observations of the affiant and hearsay information furnished him. In each instance the issuing judge must have before him enough circumstances to enable him to determine the trustworthiness of the information, for he must not only evaluate the adequacy to show probable cause of the facts and circumstances set out in the affidavit but he must also evaluate the truthfulness of the source of the information comprising those facts and circumstances.

Due to the infinite variety of human conduct, the sufficiency of any affidavit must necessarily depend upon the particular facts and circumstances in it contained.” We pass, then, to the question whether probable cause for the issue of the warrant was shown. It will be observed that the affiants seeking the issue of the warrant disclosed to the issuing judge “some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were” (that informant personally had purchased narcotics from the named individual at the place sought to be searched), as well as “some of the underlying circumstances from which the officer concluded that the informant * * * was ‘credible’ or his information ‘reliable.’ ” (That informant had previously given accurate information: resulting in the arrest of thirty-two persons for narcotics violations, including three major violators; ⁷⁰³ the seizure of a significant quantity of controlled dangerous substances; the conviction of two for narcotic violations.) See Aguilar v.