Oken v. State

KARWACKI, Judge. On January 18, 1991, a jury in the Circuit Court for Baltimore County convicted the appellant, Stephen Howard Oken, of the first degree murder of Dawn Garvin, of a first degree sexual offense upon Ms. Garvin, of burglary, and of the use of a handgun in the commission of a crime of violence. Having previously entered a plea of not criminally responsible and having been granted a bifurcated hearing on the issues of guilt or innocence and criminal responsibility, Oken elected to have the court decide whether or not he was criminally responsible. On January 22, 1991, the court found Oken to be criminally responsible.

The sentencing for Oken’s guilt of first degree murder was held before the same jury on January 24 and 25, 1991. The jury sentenced Oken to death. The trial judge subsequently imposed sentences of life imprisonment for the first degree sexual offense, a consecutive term of twenty years for the burglary, and a consecutive term of twenty years for the use of a handgun in the commission of a crime of violence. Oken has appealed those judgments.

We begin by reciting the facts surrounding Dawn Garvin’s murder. At midnight on Sunday, November 1,1987, Keith Douglas Garvin arrived at the United States Navy base in Oceána, Virginia. Mr. Garvin, who had a pass from his naval superiors, had just spent the weekend with his wife, Dawn Garvin, at their apartment in the Baltimore County community of White Marsh and was returning to his station in Oceana. Upon his arrival at the base, Mr. Garvin attempted to call his wife to notify her that he had arrived safely.

Although the telephone rang at their White Marsh apartment, there was no answer. After making several additional unsuccessful attempts to call his wife, Mr. Garvin became worried and telephoned his father-in-law, Frederick Joseph Romano. Because Mr. Romano lived in close proximity to ⁶³⁵ the Garvins’ apartment, Mr. Garvin asked Mr. Romano to check on his wife. Mr. Romano agreed, and attempted to telephone his daughter twice.

Both times there was no answer. Concerned about the fact that numerous calls to his daughter had gone unanswered, Mr. Romano decided to drive to his daughter’s apartment. When Mr. Romano arrived at his daughter’s apartment, he found the front door to the apartment ajar, all the lights in the apartment turned on, and the television blaring. Sensing that something was wrong, Mr. Romano rushed into the apartment and found his daughter, Dawn, in the bedroom lying on the bed nude with a bottle protruding from her vagina.

While attempting to give her cardiopulmonary resuscitation (“CPR”), Mr. Romano observed that there was blood streaming from her forehead. He immediately called for assistance, and paramedics arrived shortly thereafter. A paramedic then began to administer CPR, but his efforts were in vain. Dawn Marie Garvin was dead.

At 2:30 a.m., on November 2, Detective James Roeder of the Baltimore County Police Department arrived at the Garvins’ apartment to inspect the scene of the murder. Detective Roeder testified that when he entered the Garvins’ apartment he saw no signs of forced entry. Once inside, he observed a brassiere, a pair of pants, tennis shoes, a shirt, and a sweater on the floor near the sofa in the living room. The brassiere was not unhooked, but instead, was ripped on the side.

The pants were turned inside out. Roeder also noticed a small piece of rubber on the floor near the television set. In the bedroom, Roeder found two spent .25 caliber shell casings on the bed, one of which was lying on top of a shirt. The shirt was blood stained and had what Roeder believed to be a bullet hole in it.

An autopsy of Ms. Garvin’s body revealed that she had died as the result of two contact gunshot wounds; one of the bullets entered at her left eyebrow and the other at her right ear. ⁶³⁶ The last person to see Dawn Garvin before she was fatally attacked was her brother, Frederick Anthony Romano. At 8:30 p.m. on November 1, Mr. Romano stopped by his sister’s apartment to pick up a set of keys to Keith Garvin’s car. Mr. Garvin had left the car at the White Marsh apartment so that it could be repaired during the week. Mr. Romano only stayed at his sister’s apartment for about five minutes.

When he left the apartment, Ms. Garvin was preparing to walk her dog. We will state additional facts as necessary in addressing the several contentions of the appellant. I. Oken’s first contention is that the trial court affirmatively misadvised him concerning his right to testify at the criminal responsibility hearing. As a result of such advice, Oken maintains that he did not knowingly, intelligently, and voluntarily waive his right to testify.

The relevant advice given to Oken at the criminal responsibility hearing was as follows: “[THE COURT]: Mr. Oken, although we didn’t cover this when you put on your testimony yesterday with respect to criminal responsibility, you do have, as you had in the original trial, the right to testify or not testify as it relates to this stage of the proceedings as to whether or not you were criminally responsible by reason of insanity. “If you choose not to testify, I can’t think that, I can’t take any inference that, in fact, you are criminally responsible because you refused to testify. However, I’ll have to decide the case on the basis of the evidence that has been presented on this issue. “If you choose to testify, you are subject to being cross examined by the Assistant State’s Attorney on all aspects as they relate to the issue of criminal responsibility and as they relate to the direct examination which would be elicited by your counsel. So you would have, you would be subject to cross examination. ⁶³⁷ “In addition, in the event that you were found to be criminally responsible and the State chose to do so, any testimony that you, that was admitted in these proceedings would be admissible in connection with the sentencing if, in fact, that sentencing were conducted before the jury and the State could present any such testimony at that time. “So that you have the right to testify or not as to the issue in this stage. If you choose not to, I cannot infer that you are criminally responsible as a result of that choice.

I would have to decide the case on the basis of the evidence that has been presented on this issue as well as the evidence that came in in connection with the guilt/innocence phase____ “So that you can choose not to testify or you can choose to testify. If you choose to testify, you’re subject to cross examination, including any prior criminal record that you have that relates to credibility. And any testimony that you would offer in this proceeding, in the event that you were held or found criminally responsible, could be presented to the jury in the event that you elect to have sentencing done by a jury if the State chose to do so.” (Emphasis supplied). Oken argues that the advice given by the trial court was wrong as a matter of law because it suggested to him that his testimony at the criminal responsibility hearing would be admissible in toto at the sentencing hearing.

He asserts that a criminal defendant’s testimony at one stage of the proceedings against him is not automatically admissible against him at a subsequent stage of the proceedings without an evaluation of the testimony’s relevance and its probative value when compared to its prejudicial effect. In support of this contention, Oken relies primarily on Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968). In Simmons , the Supreme Court held that a defendant who testifies in a Fourth Amendment pretrial suppression hearing may not have his testimony from that hearing admitted against him in a subsequent ⁶³⁸ trial on the merits. Id. at 394 , 88 S.Ct. at 976 , 19 L.Ed.2d at 1259 .

Although Oken acknowledges that the Simmons’s holding was based on the Fourth Amendment claim addressed therein, he maintains that reasoning in Simmons has been applied in other contexts as well 1 and, therefore, is equally applicable in the case sub judice. On the other hand, the State argues that Oken’s contention regarding his right to testify was waived because he never challenged or objected to the trial court’s advice. Alternatively, the State asserts that even assuming, arguendo, that Oken’s claim was properly preserved, it fails on the merits because the Supreme Court’s decision in Simmons is not applicable to the instant case, and this Court’s decision in Gilliam v. State, 320 Md. 637 , 579 A.2d 744 (1990), cert. denied, — U.S. -, 111 S.Ct. 1024 , 112 L.Ed.2d 1106 (1991) is fatal to Oken’s contention. Because we agree with the State’s arguments concerning the merits of Oken’s claim, we hold that the trial court did not commit reversible error in advising Oken regarding his right to testify at the criminal responsibility hearing.

We explain our holding. Initially, it is clear that Oken’s reliance on Simmons is misplaced in light of the Supreme Court’s more recent decision in McGautha v. California, 402 U.S. 183 , 91 S.Ct. 1454 , 28 L.Ed.2d 711 (1971). In McGautha , the defendant relied upon the Supreme Court’s reasoning in Simmons to support his claim that his unitary trial on the issues of guilt or innocence and mitigation of a possible death sentence created an “intolerable tension” between his right not to incriminate himself and his right to testify on the issue of ⁶³⁹ mitigation. In rejecting this claim, the Supreme Court declared that its earlier decision in Simmons was strictly limited to the protection of a defendant’s testimony in a hearing on a motion to suppress evidence alleged to have been obtained in violation of his constitutional rights.

Id. at 211-12, 91 S.Ct. at 1469 , 28 L.Ed.2d at 728-29 . Therefore, we find Oken’s reliance on Simmons unpersuasive. Instead, we look to the principles we set forth in Gilliam , and Morales v. State, 325 Md. 330 , 600 A.2d 851 (1992). In Gilliam, supra, the defendant was convicted of first-degree murder, committed during the course of a kidnapping and robbery, and was sentenced to death.

On direct appeal, the defendant claimed that two colloquies between defense counsel and him, one at trial and the other at the capital sentencing proceeding, may have affirmatively misled him to believe, in part, that the court would likely acquit him if he elected not to testify. Gilliam, supra, 320 Md. at 651-52 , 579 A.2d at 751 . In evaluating this claim, we emphasized that there is no requirement that a represented defendant be advised in open court, by either the trial judge or counsel, on the issue of whether to testify or remain silent. Instead, we held that there is a rebuttable “presumption” that a represented defendant has been fully informed regarding his right to testify, and that, absent some “clear” indication in the record to the contrary, appellate courts will presume that whatever course of action the defendant ultimately takes at trial was in fact a voluntary decision made after a complete, but not necessarily on-the-record, consultation with defense counsel.

Id. at 655-56 , 579 A.2d at 753 . Although we are cognizant of the fact that Gilliam addressed the propriety of advice from defense counsel to the defendant, we believe, as evidenced in our recent decision in Morales, supra, 325 Md. at 330 , 600 A.2d at 851 , that our reasoning is equally applicable to the instant case where the advice came from the trial court. In Morales , an unrepresented defendant was convicted of possession of cocaine with intent to distribute and conspiracy to distribute cocaine. At the close of the State’s case, ⁶⁴⁰ the trial court advised the defendant of his right to testify or remain silent.

Initially, the defendant indicated that he would like to testify on his own behalf. However, the trial court repeatedly warned him, “if you take the stand and testify and you have been convicted of a crime before, they may ask you, they meaning the State may ask you about that.” Id. at 334 , 600 A.2d at 853 . Immediately after hearing that advice, the defendant changed his mind and said, “I don’t want to go up there.” Id. In light of these facts, we determined that: “A reasonable inference from the quoted colloquy between the judge and Morales is that Morales intended to testify until the judge advised him to ‘think about this’ and that his convictions could be brought out to show whether he should be believed or not.

Since Morales apparently changed his decision to testify based on the trial court’s incorrect implication that all of his prior convictions could be used to impeach him, the defendant’s decision to waive his constitutional right to testify and to exercise his constitutional right to remain silent was not knowingly and intelligently made. If the trial court— although not required to do so—had given the correct information regarding impeachment by evidence of prior convictions, the result would be different.” Id. at 339 , 600 A.2d at 855 . Applying these standards to the case sub judice, we look to the record. Shortly after the trial court advised Oken concerning his right to testify the following colloquy occurred: “THE COURT: Now, Mr. Oken you have had an opportunity to consult with your counsel with respect to this election, is that correct? “THE DEFENDANT: Yes. “THE COURT: All right. “THE DEFENDANT: Yes. “THE COURT: And do you elect to testify or not to testify, sir? ⁶⁴¹ “THE DEFENDANT: I have not come to a decision on that.

I would like to wait until the report of Dr. Spodak is in. “THE COURT: Well, Dr. Michael Spodak is not going to be presented by the State. They have closed their case. There is no report of Dr. Spodak available and Dr. Spodak, according to representations of the Assistant State’s Attorneys in my chambers with your counsel, is that they have had no communications with Dr. Spodak in connection with his examination of you last night, I believe. Is that correct, sir? “THE DEFENDANT: Yes, sir. “THE COURT: He saw you last night?

So that there is no report or summary of any examination by Dr. Spodak available. “Your counsel was with you last night, was he not, in connection with that examination? “THE DEFENDANT: Yes. “THE COURT: All right. Well, so your request to delay until such a report is denied. “THE DEFENDANT: Can I have one second? “THE COURT: Certainly. (Pause.) “THE DEFENDANT: I will not testify. “THE COURT: You choose not to testify, is that correct, sir? “THE DEFENDANT: That’s right.” In light of this record, we find no clear indication that the trial court’s advice regarding Oken’s right to testify had any influence on his decision not to testify. Indeed, the record reflects that: 1) Oken acknowledged consulting with the defense counsel concerning his election to testify at the criminal responsibility hearing prior to the trial court’s advice, and 2) Oken was given an additional opportunity to consult his attorney about testifying after the court’s advice.

Therefore, on the basis of this record we are not convinced that Oken did not knowingly, intelligently, or ⁶⁴² voluntary waive his right to testify at the criminal responsibility hearing.

II

Oken next focuses on the trial court’s instructions to the jury regarding its role in determining whether the aggravating circumstance 2 of Dawn Garvin’s murder outweighed the circumstances mitigating his guilt. Prior to sentencing, Oken requested that the jury be instructed as follows: “I advise you that if for any reason you are unable within a reasonable period of time to reach a unanimous judgment as to the balancing required by Section_of the form, I will sentence Steven H. Oken to life imprisonment.” The trial court denied Oken’s request, and, instead, instructed the jury that their determination of whether the aggravating circumstances outweighed the mitigating circumstances “must be unanimous,” and that until all 12 of the jurors agreed on whether the answer was “yes” or “no,” they could not move onto the next section of the sentencing form. Oken asserts that, pursuant to Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 413(k)(2), 3 the trial court was required to instruct the jury that a failure to reach a unanimous agreement on whether the aggravating circumstances outweighed the mitigating circumstances would result in a sentence of life imprisonment. We disagree.

This Court has already rejected the notion that a trial judge must instruct the jurors in a capital sentencing proceeding prior to their deliberations that if they cannot ⁶⁴³ agree on sentencing within a reasonable time a life sentence would be imposed. Calhoun v. State, 297 Md. 563, 593-95 , 468 A.2d 45, 58-60 (1983), cert. denied, 466 U.S. 993 , 104 S.Ct. 2374 , 80 L.Ed.2d 846 (1984); Grandison v. State, 305 Md. 685, 771 , 506 A.2d 580, 623 , cert. denied, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 (1986). See also Booth v. State, 327 Md. 142, 153-54 , 608 A.2d 162, 167-68 (1992).

III

Oken’s third contention concerns his pre-trial suppression motions. He contends that the hearing court erred in denying his motion to suppress evidence seized during a search of his home in Maryland on November 16, 1987 and from his person upon his arrest in Maine on November 17, 1987. For the sake of clarity, we shall treat Oken’s contention as two separate claims: one dealing with the search of Oken’s home in Maryland on November 16, 1987, and the other with his arrest in Maine on November 17, 1987. Before addressing the merits of each claim, we will set forth the facts developed at the hearings on his suppression motions.

Search of Oken’s Home on November 16, 1987 At 9:00 a.m. on the morning of November 16, 1987, approximately two weeks after Dawn Garvin’s murder, Sergeant Sidney Branham of the Baltimore County Police Department was patrolling the White Marsh area when he received a dispatch of a “suspicious condition” concerning a missing person at 62 Stillwood Circle, a townhouse which was the residence of Oken and his wife, Phyllis Hirt Oken. Sergeant Branham went to that address and was met by four individuals standing outside of the home. One of those individuals, a Ms. Danielle Jones, informed Sergeant Bran-ham that “she had reason to believe that her sister, Patricia Hirt, was missing and that some harm had come to her, and she came to 62 Stillwood Circle to locate her sister.” Jones also told Sergeant Branham that when she arrived at this address, she found the door to the residence partially ajar ⁶⁴⁴ and entered. Jones related that while inside the house, she had noticed that it was in disarray and that there was blood on the floor near the front entrance.

On the basis of Jones’s story, Sergeant Branham decided that he and Lieutenant Harvey should enter the house “to see if there was anyone injured in the house, [and] to look for any suspect.” Once inside the house, Sergeant Bran-ham made certain observations. He saw blood smeared on the floor in the foyer and on the door post, a towel lying on top of a trash can in the kitchen with what appeared to be dried blood stains on it, and articles of women’s clothing strewn about the floor in the living room. When Sergeant Branham left the house, he posted an officer at the front door to secure the premises until a search warrant could be obtained. Later that same morning, at about 10:00 a.m., Detective Charles Naylor of the Baltimore County Police Department received a telephone call asking him to proceed to an area near Interstate 95 and White Marsh Boulevard in Baltimore County where the body of a dead woman had been found by the Maryland State Police.

Detective Naylor went to this area to investigate. Approximately one hour later, the body of the dead woman was identified as Patricia Hirt. 4 After the discovery of the dead woman’s identity, Detective Naylor was sent to 62 Stillwood Circle where he met with Sergeant Branham. Sergeant Branham informed Detective Naylor of his observations inside the home. Based on these observations and the discovery of Patricia Hirt’s body, Detective Naylor prepared an affidavit and application for a search and seizure warrant for Oken’s home at 62 Stillwood Circle.

A warrant was signed by Judge A. Gordon Boone, Jr., and Detective Naylor returned to 62 Still-wood Circle to execute the warrant. During the search, Detective Naylor seized a .25 caliber handgun from a dresser drawer in the master bedroom. This gun was later ⁶⁴⁵ determined to be the weapon that was used to kill Dawn Garvin. At a pre-trial hearing, Oken moved to suppress the evidence seized from his home pursuant to the search and seizure warrant.

The basis for Oken’s motion was that Sergeant Branham’s initial warrantless entry into the house violated the Fourth Amendment. Oken argued that because Branham’s observations made during the illegal entry served as the basis for the warrant obtained by Detective Naylor, the evidence seized during the later search was the “fruit of a poisonous tree.” The trial court disagreed with Oken, and ruled that the police acted reasonably in response to the circumstances that were presented to them when they arrived at 62 Stillwood Circle. In short, the lower court found that Sergeant Branham’s warrantless entry into Oken’s house was justified by the emergency exception to the warrant requirement. See Mincey v. Arizona, 437 U.S. 385, 392-93 , 98 S.Ct. 2408, 2413-14 , 57 L.Ed.2d 290, 299-300 (1978); Michigan v. Tyler, 436 U.S. 499, 509 , 98 S.Ct. 1942, 1950 , 56 L.Ed.2d 486, 498 (1978); Stackhouse v. State, 298 Md. 203, 212 , 468 A.2d 333, 338 (1983).

In this Court, Oken posits that Sergeant Branham “could not have ‘reasonably’ believed that someone in urgent need of help was located in [his] home” because Ms. Jones had already been in the house, and it is reasonable to conclude that she would have told Branham if there was someone inside who needed emergency assistance. Therefore, according to Oken, Branham’s decision to make a warrantless entry was not reasonable and could not be justified under the emergency exception to the warrant requirement. We are not persuaded. In determining whether such an emergency existed in the case sub judice, “the relevant facts which we [must] consider are limited to those produced at the suppression hearing which are most favorable to the State as the prevailing party on the motion.” Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240-41 (1990) (citations omitted). ⁶⁴⁶ Although we may make our own independent constitutional appraisal of the record, we will not disturb the trial court’s findings of the basic facts unless they are clearly erroneous.

Id. In the instant case, Sergeant Branham testified that on the morning of November 16, 1987, he responded to a dispatch on his radio regarding a “suspicious condition” at Oken’s townhouse. When he arrived at the townhouse, he was met there by Danielle Jones, who was the sister of Patricia Hirt and of Oken’s wife, Phyllis. Jones told Sergeant Branham that she had reason to believe that Patricia Hirt was “missing”, that some harm had come to her, and that when she went to Oken’s home to check on Patricia, she found the door to the house “ajar”, the house in disarray, and blood on the floor near the entrance to the house.

Jones did not indicate to Detective Branham whether she had thoroughly searched the house to see if anyone was inside, and, in fact, her call to the police suggested that she obviously desired some type of police assistance in this regard. Based upon these circumstances, Detective Branham testified that he and Lieutenant Harvey “made a decision to go into the premises to see if there was anyone that was injured inside, [and] to look for ... any criminal that was involved.” Detective Branham also testified that the officers “first priority” was locating and attending the victim. Once inside the house, the officers remained only long enough to ascertain whether any people were located therein, and their search was confined to areas that could have concealed a body. The officers did not remove anything from the house, and when they left they posted a guard to secure the premises.

Based on our independent constitutional appraisal of this uncontradicted evidence at the suppression hearing, we hold that Sergeant Branham’s decision to enter Oken’s home was both reasonable and justifiable under the emergency exception to the warrant requirement. Consequently, we hold that the hearing court correctly denied Oken’s motion to suppress evidence seized during ⁶⁴⁷ Detective Naylor’s subsequent search, which was conducted pursuant to a warrant issued in partial reliance upon Sergeant Branham’s observations during his warrantless entry of Oken’s home. Oken’s Arrest in Maine on November 17, 1987 At approximately 1:00 p.m. on November 16, 1987, the same day the Maryland State Police discovered Patricia Hirt’s dead body, Oken checked into the Coachman Motor Inn (“Coachman”) in Kittery, Maine. According to the general manager of the motel, Diana Ott, Oken stated that he only wanted the room for one night.

After filling out the registration form which indicated that he was driving a white Ford Mustang with Maryland registration plates, Oken paid for his room in advance with a Visa credit card. As Ott handed Oken the keys to room 48, the telephone rang. Ott answered, and as she was talking on the telephone, she realized that she still had Oken’s credit card in her hand. Ott telephoned Oken in his room and asked him to come back to the desk and get his card at his convenience.

At 2:30 p.m., Ott’s shift at the registration desk ended. She was replaced by Lori Ward. Since Oken had not returned to claim his card at the time Ott and Ward changed shifts, Ott informed Ward that Oken might be coming to the desk for his card. Ott then went home.

Later that evening, at approximately 6:00 p.m., Ott telephoned the registration desk to check on Ward. There was no answer to her call. Ott continued to call Ward but received no answer. She then telephoned the motel’s maintenance man and asked him to check on Ward.

The maintenance man returned Ott’s telephone call about ten minutes later. He informed Ott that Ward had been found murdered. 5 Ott immediately left for the motel. She arrived at the motel around 6:30 p.m. and stayed there until 12:30 a.m. During that time she did not see Oken or his Mustang. ⁶⁴⁸ On that same day, Oken drove to Freeport, Maine, which is approximately a one hour drive from the Coachman.

At 7:54 p.m., Oken checked into the Freeport Inn. According to the desk clerk, Katherine Jones, Oken paid in cash for one night’s stay in room 250. As Oken was walking away from the desk, Jones observed blood on the back of his head. Jones brought this fact to Oken’s attention, but Oken indicated that he was “okay.” Sometime between 10:00 a.m. and 10:30 a.m. on the following morning, November 17, 1987, Oken paid for an additional night’s lodging at the Freeport Inn.

Oken never checked out of the Coachman. Returning our attention to the preceding day, November 16, at approximately 6:45 p.m., the Kittery police responded to a distress call from the Coachman. Upon arrival at the motel, the police found the body of Lori Ward in a small room behind the front desk. Ms. Ward had been shot to death.

The police began their investigation of Ward’s murder by knocking on the doors of every motel room in the Coachman, including Oken’s room, Room 48. There was no response at Room 48. The police then began a log, which they kept until 1:00 a.m. the next morning, of all persons and vehicles entering and exiting the motel. Neither Oken, nor his car were seen that evening.

At 4:45 a.m., on that same morning, Diana Ott returned to the Coachman. As part of her daily morning routine, Ott drove around the parking lot to see what cars were in front of what rooms. Ott testified that the purpose of this check was to discover “what rooms had checked out or if people had left early” so that she could inform her maids as to which rooms to start to clean first. Ott noted that at that time only four cars were in the lot and Oken’s was not one of them.

At 7:30 a.m., the maids arrived and were ready to start stripping beds and cleaning the unoccupied rooms. In light of the prior night’s events, however, Ott decided to call the Kittery police before letting the maids enter the rooms. The police asked Ott to postpone the clean-up of all the ⁶⁴⁹ rooms until they could perform a “sweep search” of the rooms. At 8:00 a.m., on November 17, the Kittery police arrived at the Coachman.

Upon their arrival, Ott gave to them, at their request, a list of the rooms which were unoccupied so that they could search these rooms. The list indicated that Room 48, Oken’s room, was unoccupied. The police knocked at and entered every unoccupied room, and one occupied room, until they reached Room 48 at approximately 9:30 a.m. This was before the 11:00 a.m. check-out time at the Coachman.

There was no answer at Room 48, so the police unlocked the door and entered the room. Once inside Room 48, the police discovered a bottle of vodka, a half-gallon of orange juice, a few small pieces of rope, a pair of socks, a shirt with blood stains on it, and blood smudges on the wall in the bathroom. There were no toilet articles, personal belongings, luggage, or any kind of bags in the room, and the bed had not been turned down. After discovering these articles in Room 48, the police went to Ott, and asked her who was the last person to stay in Room 48.

She checked her records and informed the police that Oken was the last individual to occupy Room 48. She also gave them the license tag number for the vehicle he was driving. When the police sought information by teletype about the registration of that automobile, they learned that Oken was wanted in connection with two murders in Maryland and that the car he was driving had been stolen the previous day in Maryland. At approximately 5:10 p.m., on November 17, 1987, Oken was arrested at the Freeport Inn.

Upon his arrest, the police seized the tennis shoes that he was wearing along with all his personal belongings and his car. During the guilt or innocence stage of Oken’s trial, one of the tennis shoes seized was matched with the piece of rubber found in Dawn Garvin’s apartment on the night of her murder. At a pre-trial hearing, Oken moved to suppress the tennis shoes as fruit of an illegal arrest prompted by an illegal ⁶⁵⁰ search of his room at the Coachman Inn. The trial court denied suppression of the tennis shoes on the alternative grounds that: 1) Oken had abandoned any expectation of privacy in room 48, and therefore had no standing to challenge the police search of that room, 6 Duncan and Smith v. State, 281 Md. 247 , 378 A.2d 1108 (1977); and 2) the evidence found in Room 48 would inevitably have been discovered either when a search was made after check-out time 7 or when the maid went to clean the room.

Nix v. Williams, 467 U.S. 431 , 104 S.Ct. 2501 , 81 L.Ed.2d 377 (1984). On appeal, Oken contends that the hearing court's ruling was erroneous. He claims that Room 48 was not abandoned at the time the police conducted their search prior to the 11:00 a.m. checkout time, and that the prosecution failed to meet its burden of proving that the items found in Room 48 would have been inevitably discovered. Before addressing the merits of Oken’s contentions, we reiterate that: “When the question is whether a constitutional right, such as the one here, has been violated, we make our own independent constitutional appraisal____by reviewing the law and applying it to the peculiar facts of the particular case.

State v. Gee, 298 Md. 565, 571 , 471 A.2d 712 , cert. denied, 467 U.S. 1244 , 104 S.Ct. 3519 , 82 L.Ed.2d 827 (1984). When the facts are in dispute, we accept them as found by the trial judge unless he is clearly erroneous in his judgment on the evidence before him. In ascertaining ⁶⁵¹ whether he is clearly erroneous, we give ‘due regard to the opportunity of the trial court to judge the credibility of the witnesses/ as commanded by Md.Rule 8-131(c). When the question of the dishonor of a constitutional right arises by the denial of a motion to suppress, the relevant facts which we consider ‘are limited to those produced at the suppression hearing, see Trusty v. State, 308 Md. 658 , 521 A.2d 749 (1987), which are most favorable to the State as the prevailing party on the motion.’ Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22 (1990).” Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240-41 (1990).

A. Oken’s first contention regarding the hearing court’s denial of his motion to suppress the tennis shoes is that the hearing court incorrectly applied the test for abandonment announced by this Court in Duncan and Smith, supra, 281 Md. at 265 , 378 A.2d at 1119 . In Duncan and Smith , we held that: “ ‘Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts____ All relevant circumstances existing at the time of the alleged abandonment should be considered____ The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.’ ” (quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973) (citations omitted)). According to Oken, “it is clear from this test that the circumstances to be examined are those existing at the time of alleged abandonment.’’ (emphasis Oken’s). He argues that because the hearing court based its determination of whether he abandoned Room 48 on an objective assessment of the facts presented ⁶⁵² to the court at the time of the hearing, rather than on an evaluation of the circumstances known to the police at the time they entered Room 48, the court’s ruling was error.

Oken maintains that, given the circumstances known to the officers when they first entered Room 48, the evidence in this case does not support a finding of abandonment. The State, on the other hand, contends that the hearing court properly found that Oken had abandoned Room 48 based upon an objective analysis of the circumstances known to the court at the time of the suppression hearing. It argues that Oken fails to recognize the distinction between the question of abandonment in the context of whether the Fourth Amendment is applicable versus the question of abandonment in the context of whether the Fourth Amendment has been satisfied. In the instant case, the State submits that question confronting the motions judge was whether the Fourth Amendment was applicable.

It points out the fact that during the suppression hearing the prosecutor repeatedly raised the issue of whether Oken had standing to challenge the initial search of Room 48 by arguing that Oken had abandoned that room. Thus, since standing is an issue of Fourth Amendment applicability, the State contends that the proper standard of review is one based upon an objective and historical assessment of the facts known to the hearing court at the time of the suppression hearing. In support of this proposition, the State relies on our decision in Faulkner v. State, 317 Md. 441, 446 , 564 A.2d 785, 787 (1989), where we explained: “ ‘When we shift issues from that of Fourth Amendment satisfaction to that of Fourth Amendment applicability [i.e. standing], our criteria for measuring change dramatically. The concern shifts from the merits of the litigation to the entitlement to litigate.

The focus shifts from the subjective viewpoint of the policeman to the objective appraisal of the trial judge. The timeframe shifts from the moment of search or seizure to the moment of the suppression ruling. The object of the measurement shifts from reasonable appearances to his ⁶⁵³ toric reality. What finally matters shifts from what the policeman reasonably believed out on the street to what the suppression hearing judge ultimately knows in the courtroom.’ ” (quoting Ruffin v. State, 77 Md.App. 93 , 549 A.2d 411 (1988)).

The State argues that, under such an objective analysis, there was ample evidence supporting the hearing court’s finding that Oken had abandoned Room 48. After reviewing the record in the instant case, we agree that the State raised, and vigorously argued, the question of whether Oken had standing to contest the search of Room 48. Therefore, since the issue of standing was raised, we hold that the proper basis for the court’s analysis was an objective and historical assessment of the circumstances known to the court at the time of the suppression hearing. See Faulkner, supra, 317 Md. at 446 , 564 A.2d at 787 .

Having concluded that the hearing court used the proper focus for its analysis, we turn to the question of whether there were sufficient facts before the hearing judge to support his finding that Oken had abandoned Room 48 before the police entered that room without a warrant at approximately 9:30 a.m. on November 17, 1987. The factual predicate for our review is that evidence adduced at the suppression hearing which is most favorable to the State as the prevailing party on the motion. Riddick, supra, 319 Md. at 183 , 571 A.2d at 1240-41 ; Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22, 22 (1990). During the suppression hearing, the State presented the following evidence: 1) only five hours after Oken checked into the Coachman, he drove for approximately an hour and a half to Freeport, Maine and checked into the Freeport Inn; 2) Oken left nothing in Room 48 except a bloody shirt, a dirty pair of socks, half a bottle of vodka, and some orange juice; 3) Oken left no luggage in Room 48; 4) from the police logs kept by the police at the Coachman it is clear that Oken did not return to the motel before approximately 1:00 a.m. on ⁶⁵⁴ November 17th; 5) from the testimony of the manager at the Coachman, Oken was not at the motel after 4:45 a.m. on the 17th, and there is no evidence that he returned to the Coachman between 1:00 a.m. and 4:45 a.m.; 6) the bed in Room 48 was not slept in; 7) testimony by a manager at the Freeport Inn placed Oken near the Freeport Inn some time between 10:00 a.m. and 10:30 a.m. on November 17th, at which time he paid for an additional night’s lodging at the Freeport Inn.

In light of such a record, we hold that the hearing judge’s ruling on abandonment was not clearly erroneous. B. On the issue of inevitable discovery, Oken contends that the hearing court’s ruling was erroneous because the State did not meet its burden of demonstrating that “certain proper and predictable investigatory procedures would have been utilized ... and ... that those procedures would have inevitably resulted in the discovery of the evidence in question.” Stokes v. State, 289 Md. 155, 163 , 423 A.2d 552, 556 (1980) (quoting LaCount and Gírese, The “Inevitable Discovery” Rule, an Evolving Exception to the Constitutional Exclusionary Rule, 40 Alb.L.Rev. 483, 491 (1976). See also Nix, supra, 467 U.S. at 444 , 104 S.Ct. at 2509 , 81 L.Ed.2d at 387-88 . Specifically, Oken submits that the State did not show that: 1) the police would have conducted a search of Room 48 pursuant to a warrant or valid consent from the owner of the Coachman, and 2) the procedures followed by the maids in the motel would have inevitably led to the discovery of the evidence in Room 48.

We disagree. During the suppression hearing, the State called the manager of the Coachman, Diana Ott. Ott testified that, absent the initial entry by the police into Room 48, certain predictable and customary cleaning procedures would have been utilized, and would have resulted in the discovery of the items found in Room 48. She recounted that at 4:45 ⁶⁵⁵ a.m., on the day after Lori Ward’s murder, she circled the parking lot of the motel to determine which of the motel rooms that were occupied overnight were now vacant and thus ready for cleaning.

Ott testified: “I drove around the parking lot. I did that routinely. I did that every morning.” She then attested that had she not called Chief Strong of the Kittery police to notify him that she would be cleaning the recently occupied rooms, the cleaning crew, accompanied by her, would have started cleaning the rooms at approximately 7:00 a.m. and would have finished no later than 8:00 a.m. Ott further noted that in light of the events of the previous night, she would have picked up the shirt, and upon discovering the blood, would “immediately” have called Chief Strong.

Accordingly, we conclude that the State presented ample evidence demonstrating that the items in Room 48 would have been inevitably discovered through lawful means, and therefore the motion judge’s ruling was not clearly erroneous. In holding that the hearing court’s ruling on inevitable discovery was not clearly erroneous, we also reject Oken’s alternative contention that the doctrine of inevitable discovery should not apply in any event because the police acted in bad faith when they searched Room 48 prior to the 11:00 a.m. checkout time. As the Supreme Court held in Nix, supra, 467 U.S. at 445 , 104 S.Ct. at 2509 , 81 L.Ed.2d at 388 : “The requirement that the prosecution must prove the absence of bad faith ... would place courts in the position of withholding from the juries relevant and undoubted truth that would have been available to police absent any unlawful police activity. Of course, that view would put the police in a worse position than they would have been in if no unlawful conduct had transpired.

And of equal importance, it wholly fails to take into account the enormous societal cost of excluding truth in the search for truth in the administration of justice.” (emphasis in original). See also United States v. Whitehorn, 813 F.2d 646, 649-50 (4th Cir.1987), cert. denied, 487 ⁶⁵⁶ U.S. 1234 , 108 S.Ct. 2898 , 101 L.Ed.2d 931 (1988) (inevitable discovery doctrine applied to evidence discovered during illegal bomb sweep of apartment).

IV

We next consider the issue of whether the trial court erred in permitting Special Agent William Heilman to testify as an expert at Oken’s trial on guilt or innocence. The State called Heilman to testify regarding his comparison of the piece of rubber found in Dawn Garvin’s apartment and a tennis shoe seized from Oken when he was arrested. During the voir dire on his qualifications, Heilman testified that he worked at the Federal Bureau of Investigation (“FBI”) as “an examiner of questioned documents.” In addition to making comparisons or examinations of questioned documents, Heilman pointed out that he had examined shoe prints, tire tracks, plastic bags, and that he had performed torn edge comparisons of paper, tape, plastic bags, and matches. Heilman stated, however, that he had never performed a torn edge comparison with rubber.

Based on Heilman’s voir dire, the State asked the trial court to qualify Heilman as an expert in forensic comparisons. The court declined to do so, but allowed the prosecutor to further question Heilman regarding his torn edge comparison expertise. In response to further voir dire examination by the State, defense counsel, and the trial court, Heilman explained that he received on-the-job training in the area of torn edge comparisons through his work at the FBI. Specifically, Heilman stated that between 1981 and 1983 he received training in a laboratory as an assistant to a senior examiner, and that after 1983 he became qualified by the FBI to conduct his own torn edge comparisons.

Since 1983, Heilman testified that he had been involved in approximately 12 cases involving torn edge comparisons, and that any one case may require “thousands” of comparisons. Nevertheless, Heilman admitted that he had never testified as an expert in torn edge comparisons. ⁶⁵⁷ In addition to relating his experience with torn edge comparisons during the voir dire examination on his qualifications, Heilman described the procedures involved in conducting a torn edge comparison. He stated that, in conjunction with performing side-by-side comparisons, he would ordinarily compare the color, thickness, and microscopic line crossings of the items in question. He related that in conducting the examination of the rubber and the tennis shoe in the present case, he “made a cast of the individual area of the shoe to look at the external torn structure and compare that to the [piece of rubber].” At the conclusion of Heilman’s voir dire examination on his qualifications, a bench conference was held wherein the following colloquy occurred: “[PROSECUTOR]: Judge, according—I am in the area of torn edge comparisons.

I would point out to the Court that an expert only has to be one who has more experience than a layman and that is someone who can give an opinion that will be of appreciable help to the jury. Clearly, while this is the first time this person has ever done an examination with a piece of rubber, he is quite candid that he said that. There has to be a first time for all of us. There is a first time for his handwriting, too.

Clearly, by his experience and knowledge and doing side-by-side comparisons in other materials, he can give help to the jury because he knows more than they do. That is all the law says. He can be of appreciable help to the jury as to what he is testifying outside the layman’s normal experience. I think it is clear that his experience, training, knowledge, and on the job work goes well beyond what any normal layman can do and to allow us an opinion upon that. “[DEFENSE COUNSEL]: He is simply trying to offer this witness to substitute his eyesight [for that] of the jury.

This man is not qualified as a torn edge expert. He is certainly not qualified as an expert on rubber and he is his own—he is self-qualified, if qualified at all. The jury can look as well as I can look. He is only going to ⁶⁵⁸ confuse them and prejudice them that he works for the FBI and so on.

He has had no further experience. I mean, what it comes down to, the State is asking this guy to tell the jury what he should find. Period. It is a matter of eyesight.

They can do that as well as he can do that. “THE COURT: Well, I think that goes to the weight that the jury will give the expert. I think that the witness has qualified as an expert to offer that which is beyond the ability of the jurors. Compare in light of the techniques that are used beyond experts in his comparisons, as to his, not only whether it matches from a side-by-side comparison or putting together composites, but also from the microscopic crossings of the lines are in a piece as compared to the shoe itself. There is expertise beyond those layman's ability to compare what this witness has in light of his training and experience as he has described it.

So the objection to the witness being qualified is overruled. I would tell the witness that he is qualified and his testimony is for their determination as to its weight. “[DEFENSE COUNSEL]: May I say this for the record? He has no validity with regard to comparing rubber pieces, torn edges or otherwise. He described his function and his method of operation as trying to put a jigsaw puzzle together.

This jury is the putter together of the jigsaw puzzle in this case and this guy wants to put the puzzle together for them. That is the jury’s function. “THE COURT: I disagree. I think Counsel has made on the record as part of what the witness said, but the witness went on to say that his evaluation did show that he did the line comparison by the microscopic crossings of the lines. He can testify because only he did it and the jury does not have the facility to do that kind of testing on their own.

And in light of his background with respect to paper, plastic, matches, paper and tape, his expertise exceeds that as the general layman. ⁶⁵⁹ “[DEFENSE COUNSEL]: I welcome Your Honor’s ruling. He has shown no qualifications as a cast maker, Your Honor. “THE COURT: You can cross-examine that. “[DEFENSE COUNSEL]: Thank you.” Thereafter, the trial court accepted Heilman as an expert in the field of torn edge comparisons, and Heilman explained to the jury how he examined Oken’s tennis shoe and the piece of rubber found in Dawn Garvin’s apartment. Heilman concluded that, in his opinion, “the piece of rubber at one time was part of the sole of the known shoe.” Before us, Oken renews his objection to the trial court’s ruling allowing Heilman to testify as an expert. He argues that: 1) Heilman’s testimony as an expert was not relevant because it did not aid the jury in determining whether or not the piece of rubber fit the tennis shoe; and 2) assuming, arguendo, expert testimony was necessary, Heilman did not qualify as an expert.

We perceive no error in the trial court’s rulings. It is well settled that “the admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal.” Stebbing v. State, 299 Md. 331, 350 , 473 A.2d 903, 912 , cert. denied, 469 U.S. 900 , 105 S.Ct. 276 , 83 L.Ed.2d 212 (1984) (quoting Raithel v. State, 280 Md. 291, 301 , 372 A.2d 1069, 1074-75 (1977)). The Maryland test for admissibility of expert testimony was reviewed by this Court in Simmons v. State, 313 Md. 33, 41-42 , 542 A.2d 1258, 1262 (1988): “A determination as to the admissibility of expert testimony is based on several findings. First, the trial court must determine whether the evidence to be presented is a proper subject for expert testimony.

The standard for relevance under Maryland common law is whether the jury will receive appreciable help from the expert testimony in resolving the issues presented in the case. ⁶⁶⁰ “Before expert testimony is admitted the court must also determine whether the proposed expert is qualified to testify by virtue of education and experience. “Finally, the proposed expert testimony must be competent, that is, the expert’s conclusions must be based upon a legally sufficient factual foundation. Ideally, the expert will testify from first-hand knowledge, such as that gained from a personal examination of an individual. Only with the basis for the expert testimony revealed will the jury be able to properly weigh the evidence.” (citations omitted). In the present case, we believe that the record of Heilman’s voir dire examination on his qualifications supports the trial judge’s conclusions that Heilman’s testimony would be helpful to the jury, and that Heilman was qualified to testify as an expert based on his FBI training.

During his voir dire examination, Heilman testified that in addition to conducting a simple side-by-side comparison of the items in question, the procedure for making tom édge comparisons involved the examination of microscopic line crossings and the casting of moldings. Such techniques are certainly not within a juror’s, everyday experience and, therefore, would aid the jury in determining whether the piece of rubber found in Dawn Garvin’s apartment matched the tennis shoe seized from Oken. With respect to Heilman’s qualifications, Heilman testified that he had received two years of experience comparing tom edges as an assistant in a laboratory for the FBI, and has been qualified by the FBI to conduct tom edge comparisons on his own for approximately seven years. During those years, Heilman stated that he was involved in at least twelve cases requiring tom edge comparisons and that each case may involve “thousands” of comparisons.

Although he acknowledged that he never had occasion to make a torn edge comparison with rubber substances, Heilman stated that the technique normally used in making tom edge comparisons was utilized in the case sub judice. We ⁶⁶¹ hold that the trial court did not abuse its discretion in permitting Heilman to testify as an expert. V. Next, we consider Oken’s contention that there was insufficient evidence to support his convictions for burglary and first degree sexual offense. Recently, in Wiggins v. State, 324 Md. 551, 566-67 , 597 A.2d 1359, 1366-67 (1991), cert. denied, — U.S. -—, 112 S.Ct. 1765 , 118 L.Ed.2d 427 (1992), Chief Judge Murphy speaking for the Court reiterated the standard that we apply when reviewing the sufficiency of the evidence in a criminal case: “In Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980), an appeal in a death penalty case, we stated that the standard to be applied in reviewing the sufficiency of the evidence to support a criminal conviction was ‘ “whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” ’ Tichnell, 287 Md. at 717 , 415 A.2d 830 (quoting Jackson v. Virginia, 443 U.S. 307, 318 , 99 S.Ct. 2781, 2788 , 61 L.Ed.2d 560 (1979)).

This standard does not require a court to ‘ “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt” rather, the standard to apply is ‘ “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ Jackson v. Virginia, supra, 443 U.S. at 318-19 , 99 S.Ct. at 2788-89 (emphasis in original). We recently restated this standard of review in these terms: ‘ “[T]he constitutional standard of review is ‘whether after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” ’ Wilson v. State, [ 319 Md. 530, 535 , 573 A.2d 831, 833 (1990) (quoting West v. State, 312 Md. 197, 207 , 539 A.2d 231, 236 (1988))].” ⁶⁶² With this standard in mind, we separately review whether Oken’s convictions for burglary and first degree sexual offense are adequately supported by the evidence. A. Burglary is defined as “the breaking and entering of the dwelling house of another in the nighttime with an intent to commit a felony.” Warfield v. State, 315 Md. 474, 493 , 554 A.2d 1238, 1248 (1989); State v. Davis, 310 Md. 611, 617 , 530 A.2d 1223, 1226 (1987). The breaking element of burglary “may be satisfied where it is shown that there has been an ‘actual’ breaking, or the breaking occurred ‘constructively,’ through an entry gained by artifice, by fraud, conspiracy, or by threats.” Brooks v. State, 277 Md. 155, 159-60 , 353 A.2d 217, 220 (1976) (quoting Williams v. State, 205 Md. 470, 477 , 109 A.2d 89, 93 (1954)).

In the present case, Oken asserts that there was no evidence of actual or constructive breaking to support his conviction for burglary. The State, to the contrary, maintains that it presented ample evidence to establish that a constructive breaking occurred. It points to the testimony of Mark Glidden, Robert Strange, Bonnie Winkelman, Gregory Gunnell, and Burnita Wilder as