Robinson v. State

Gilbert, J., delivered the opinion of the Court. The discovery of the bodies of two 15 year old boys in a rural woods in Charles County led to the indictment and conviction of Bernard William Robinson, appellant, on two charges of murder in the first degree for which Robinson was sentenced to concurrent terms of life imprisonment. In this appeal, appellant asserts 9 reasons why the judgments of the Circuit Court for Frederick County should be reversed. He states: 1.

That a confrontation with a witness was impermissibly suggestive. 2. A pistol taken from his automobile was the fruit of an illegal search and seizure.. 3. Carbon residue extracted from the exhaust pipe of his automobile was also the fruit of an illegal search and seizure. ⁶⁸² 4. The taking of blood and hair samples from his person without his consent was constitutionally proscribed. 5.

The seizure of a pair of gray shoes, without the benefit of a search warrant, from the residence occupied by him, precluded the introduction of the shoes into evidence. 6. Appellant’s objection to the admissibility of opinions of expert witnesses should have been sustained. 7. Objections to questions asked of the appellant, which exceeded the scope of direct examination, should have been sustained. 8. The trial court erred in failing to grant his motion for judgment of acquittal. 9.

The trial judges’ instruction to the jury concerning the burden of proof was erroneous. The record discloses that at approximately 9:00 a.m. on June 8, 1971, the bodies of James Miers and Clark Larcher, both 15 years of age, were found in a woods a short distance from Wilkerson Road, in Charles County. The person who. found the bodies, James Wilkerson, a farmer of that area upon whose land the bodies actually were located, had his attention drawn to the scene by his observing blood stains on the road. Mr. Wilkerson thought that possibly a deer had been struck by an automobile, but upon a closer examination of the area adjacent to the road he discovered the bodies.

The police were immediately notified. The autopsy report showed that Miers had been shot twice in the right temporal area of .the head by a .22 caliber weapon. Larcher had been wounded six times, four of which bullets entered his head. Expended .22 caliber cartridges and blood stains were discovered at the location of the bodies and also at a tarpaper shack that was approximately one-half mile from the place where the bodies had been found.

The blood stains were the same blood type as that of both victims. On the afternoon of June 9, Shelton Plumer, while at his place of employment, received a phone call that someone was walking around his house. Three or four minutes later, Mr. Plumer arrived at his home and upon entering it ⁶⁸³ observed a man approximately 10 to 14 feet away from him. The man had gained access by prying a screen from a window.

He made a hasty exit through an open window. Plumer called the police, and described the person who had entered his house as wearing a “short sleeved yellow shirt, and dark trousers.” He further described a Chevy II automobile, bearing tag JX 8288, heading east, as the car in which the person had fled. Plumer said that he noticed that a wallet and approximately $200.00 were missing. Within a matter of a few minutes Deputy Sheriff John H. Wood, who had received radio information of the breaking and entering, observed an automobile matching the description of that in the broadcast, and further saw the appellant, wearing a yellow shirt, standing alongside the car.

Wood immediately stopped his vehicle, placed the appellant under arrest, and conducted a search of appellant’s person. During the course of the search he removed $276.00 in paper currency, and change, from the appellant, as well as a box of .22 caliber long cartridges. Wood then placed handcuffs upon the appellant and put him in the police vehicle. Wood testified that when he started back to search appellant’s car, the appellant got out of the police car, making it necessary for Wood to return and put the appellant back in the police car.

Wood then returned to the appellant’s automobile and looked inside, where he saw a tape recorder on the floorboard of the passenger’s side of the front seat, and he found a .22 caliber pistol under the driver’s seat of the vehicle. His testimony was then slightly confusing as to whether he conducted the search of the vehicle prior to the arrival of other officers for whose assistance Wood had radioed, or whether he had searched the vehicle after the arrival of the other officers. Initially Wood’s testimony was that the others had arrived before the search. He later recanted and said that he conducted the search before the arrival of aid.

The latter version was supported by the testimony of another deputy, Donald L. Poole of the Charles County sheriff’s office, who told the court: “At first I was under the impression as I was pulling up to the rear of this car [the appellant’s] ⁶⁸⁴ that it was — my first impression was [Wood] had his service revolver out. As I got out of my vehicle I observed that his weapon was holstered and that it was another weapon that he was holding.” After the appellant was removed from the scene as a result of his arrest for breaking and entering, the murder investigation apparently focused upon him. The police visited the residence of the appellant’s brother with whom the appellant had been living, and received permission, in writing, to search the premises. From the premises they recovered a pair of gray shoes that bore stains appearing to be blood.

In an automobile on the property of the brother, the officers located a jacket which was also stained with what they thought to be blood. The automobile of the appellant was removed to a service station. While there, State police, having observed what appeared to be carbon residue on the road near the place where the bodies had been found, and also on the grass near the tarpaper shack, extracted carbon from the exhaust pipe of the appellant’s vehicle. Because of the discovery of blood and body hair in the shack, a search and seizure warrant was obtained for the purpose of taking hair, as well as blood samples, from the person of the appellant.

Following indictment in Charles County, the appellant sought removal. The case was sent to Frederick County for trial. THE CONFRONTATION WITH A WITNESS After the appellant’s arrest by Deputy Wood, appellant was taken to the residence of Plumer where Plumer identified him as the person who had broken into his, Plumer’s, house. Appellant maintains that the identification was impermissibly suggestive.

The charges, as we have previously noted, upon which the appellant was convicted, were the murders of Miers and Larcher. He was not tried for the breaking and entering of Plumer’s home, nor do we perceive from this record that he was charged with the same. The question of whether, vel non, the identification of ⁶⁸⁵ appellant by Plumer was impermissibly suggestive, and hence constitutionally proscribed, Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967 , 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U. S. 293 , 87 S. Ct. 1967 , 18 L.Ed.2d 1199 (1967); Bates v. United States, 132 U.S. App. D.C. 36 , 405 F. 2d 1104 (1968); Palmer v. Peyton, 359 F. 2d 199 (4th Cir. 1966); Davis v. State, 13 Md. App. 394 , 283 A. 2d 432 (1971), cert. denied, 264 Md. 746 (Jan. 17, 1972); Spencer v. State, 10 Md. App. 1 , 267 A. 2d 323 (1970); Billinger v. State, 9 Md. App. 628 , 267 A. 2d 275 (1970), is not relevant to this appeal. Even if we were to assume, which we do not, that the confrontation was tainted, such an assumption would have no direct or indirect bearing upon the trial for the murders of Miers and Larcher.

The contention raised by appellant is, at best, under the circumstances of this case an abstract point of law, and we shall not consider it. THE SEARCH OF THE AUTOMOBILE Appellant argues that the search of his automobile by Deputy Wood was illegal because Wood “did not have probable cause to believe that the car contained evidence of a crime and further there were no exigent circumstances making the obtention of a warrant impractical.” Appellant grounds his attack upon the search on the premise that the appellant had been handcuffed and placed in the police vehicle at the time of the search, and that other police officers had arrived at the scene, so there was no reason to conduct the search for personal safety, nor was the search incident to an arrest. Consequently, appellant alleges a search and seizure warrant should have been obtained before the police conducted the search of the car. Failure to obtain the search warrant, in appellant’s view, renders the seizure of the .22 caliber pistol illegal so that the weapon could not be used in evidence against the appellant.

We think the search of the automobile to be proper. Deputy Wood had probable cause to believe at the time he arrested appellant that a felony had been committed and that the appellant had committed it. Wood had received information via police radio broadcasts that the home of ⁶⁸⁶ Shelton Plumer had been broken into by one “colored male about 5' 10" wearing a yellow shirt” and dark pants, and that “there was a wallet with approximately $200.00 missing.” Deputy Wood received further information that the suspect had entered an automobile and “that the vehicle had fled the scene and that it was a ‘62 light blue Chevrolet bearing Maryland Registration JX 8288.” When he observed the appellant, fifteen or twenty minutes later, wearing a yellow shirt and standing alone beside an automobile that correctly fit the description of the car in which the person who had perpetrated the breaking and entering had fled, Deputy Wood had probable cause to make the arrest of the appellant. Probable cause is no more than “. . . [A] non-technical conception of a reasonable ground for belief of guilt requiring less evidence for such belief than would justify a conviction, but more evidence than mere suspicion.” Cuffia v. State, 14 Md. App. 521, 525 , 287 A. 2d 319, 322 (1972).

See also Cleveland v. State, 12 Md. App. 712 , 280 A. 2d 520 (1771); Cleveland v. State, 8 Md. App. 204 , 259 A. 2d 73 (1969); Cornish v. State, 6 Md. App. 167 , 251 A. 2d 23 (1969). During the course of the search of the appellant, Wood found $276.00, but he did not find the wallet that had been reported taken. He had, in our view, probable cause to believe that the wallet was still in the motor vehicle, and he had a right to look in the car for the wallet. The search of appellant’s person disclosed a box of .22 caliber ammunition.

That discovery gave rise to a reasonable inference that the appellant possessed a weapon, and inasmuch as the weapon was not on the appellant’s person it certainly could have been in the motor vehicle. The second phase of the appellant’s contention,, i.e., that there was no exigency for the search is without merit. This Court, in Bailey v. State, 16 Md. App. 83, 105 , 294 A. 2d 123, 135 (4972), summarized those cases wherein we had found exigency to exist. We stated, at 105-106: “. . .

In Peterson, Deal and Hunt v. State, 15 Md. App. 478 , we held exigency to exist for the search of ⁶⁸⁷ two vehicles on a liquor store parking lot, notwithstanding the prior arrest of the six occupants. In Scales v. State, 13 Md. App. 474 , we held exigency to exist for the search of an automobile at rest on a residential parking lot late at night, notwithstanding the absence of its owner from the area. In Johnson, Ward and Garrett v. State, 10 Md. App. 652 , we held exigency to exist for a search of an automobile on a highway, notwithstanding the arrest and removal to the police station of its occupants. In Middleton v. State, 10 Md. App. 18 , we held exigency to exist for the search of one automobile parked on a street in Wilmington, Delaware, notwithstanding the prior arrest of its driver and his removal to the station house.

We held exigency to exist for the search of another vehicle in an alley in Baltimore, notwithstanding the prior removal to the police station of the two men who had been shown to have any connection with it. In Johnson v. State, 9 Md. App. 166 , we held exigency to exist for the search of an automobile parked upon a public street, notwithstanding the prior arrest of its owner. In Cook v. State, 8 Md. App. 243 , we held exigency to exist for the search of an automobile parked in front of a suspect’s residence, notwithstanding the prior arrest of the suspect in his apartment. In Sutton v. State, 8 Md. App. 285, we held exigency to exist for the search of a vehicle stopped upon a highway and then removed to a police garage, notwithstanding the fact that its four occupants were in police custody at the Waldorf Barracks.

In Johnson v. State, 8 Md. App. 28 , we held exigency to exist for the search of an automobile parked on the street, notwithstanding the detention of its owner at the police station. In Cornish and Gilman v. State, 6 Md. App. 167 , we held exigency to exist for the search of a truck stopped on the street and then towed to a police garage, notwithstanding the prior arrest of the driver.” ⁶⁸⁸ According to one version of the testimony, Wood was alone at the time he made the arrest. The arrest was, as we have already indicated, in a rural area of the county. For his own personal safety Wood had a right to look for weapons.

The factual situation confronting Deputy Wood clearly demonstrates the exigency necessary for the warrantless search. The placing of appellant in the police vehicle prior to the time Wood conducted the search did not eliminate the exigency. In Bailey, supra, at 105 , it is said: “The mere placing of a suspect vehicle’s occupants in custody does not extinguish exigency, if it otherwise exists.” In the instant case, the appellant further suggests that the motor vehicle could have been placed under police guard while a warrant was obtained. Such an assertion is directly contrary to our answer to the same contention made in Bailey .

There, at 106, we opined: “The appellant’s argument that the police could have kept the station wagon guarded and immobilized while a search warrant was being obtained ignores the clear voice of Chambers v. Maroney, 399 U. S. 42 , that the Fourth Amendment requires no more for the warrantless search of the vehicle than it requires for a ‘warrantless seizure of the car and the denial of its use to anyone until a warrant is secured.’ Chambers points out that ‘. . . there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained’ . . . .” We think the search of the appellant’s vehicle to have been lawful, and that Bailey is dispositive of the appellant’s argument. See also Cady v. Dombrowski, 413 U. S. 433 , 13 Cr. L. 3231, decided June 21, 1973. THE TAKING OF A CARBON RESIDUE SAMPLE FROM APPELLANT’S VEHICLE Appellant next argues that the actions of Sgt.

Summers ⁶⁸⁹ and Sgt. Coonradt of the State Police in scraping carbon residue from the tail pipe of appellant’s vehicle, absent a valid search and seizure warrant, constitutes an illegal search. We disagree. When appellant was apprehended and the .22 caliber pistol was discovered in his motor vehicle, that discovery triggered the police investigation into the activities of appellant prior to the breaking and entering of Plumer’s residence.

The police were spurred on by their knowledge that the victims of the double slaying had been killed with a .22 caliber weapon. Following appellant’s removal from the scene of the arrest, the motor vehicle was towed to a service station where it was stored. The next day, Sgts. Summers and Coonradt went to the service station ostensibly to view the vehicle for blood stains, fingerprints, or any other evidence that might connect appellant with the murders.

Sgt. Coonradt testified that he scraped the residue from the exhaust pipe of appellant’s vehicle before the car was started. Sgt. Summers said that the samples were obtained on a piece of paper from under the exhaust after the car had been started.

The tail pipe on appellant’s vehicle, instead of being parallel to the ground, was bent in such a way that it was almost perpendicular to the ground. The Fourth Amendment to the Constitution of the United States provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment was made applicable to the States through the Due Process Clause of the Fourteenth Amendment. See Mapp v. Ohio, 367 U. S. 643 , 81 S. Ct. 1684 , 6 L.Ed.2d 1081 (1961). It is important to note that the Fourth Amendment does not preclude all warrantless searches, but only those which are “unreasonable.” Harris v. United States, 331 U. S. 145 , 67 S. Ct. 1098 , 91 L. Ed. 1399 (1947), ⁶⁹⁰ rehearing denied, 331 U. S. 867 , 67 S. Ct. 1527 , 91 L. Ed. 1871 (1947); Go-Bart Importing Company v. United States, 282 U. S. 344 , 51 S. Ct. 153 , 75 L. Ed. 374 (1931); Jones v. State, 13 Md. App. 309 , 283 A. 2d 184 (1971), cert. denied, 264 Md. 749 (Jan. 17, 1972); Pinkney v. State, 12 Md. App. 598 , 283 A. 2d 800 (1971), cert. denied, 263 Md. 718 (Nov. 9, 1971).

Appellant’s counsel vigorously objected to the testimony of both Sgt. Summers and Sgt. Coonradt with reference to the carbon that they had obtained from the exhaust pipe of the car. They further objected to the testimony of Charles Michael Hoffman, an expert in forensic chemistry, who stated that he compared the carbon obtained from appellant’s car with that found near the bloodied shack, and he determined the specimens to be similar in content and concentration.

The issue presented to us is whether, after the police have conducted a search of a motor vehicle incident to an arrest and have moved the automobile to another place for storage, they must obtain a search and seizure warrant before they may again search the car. The arrest of appellant occurred at approximately 2:00 p.m. on June 9, 1971. The obtaining of the carbon from the vehicle was on the evening of June 10 — a time lapse of somewhat more than 24 hours. We sanctioned, in Bailey v. State, supra, a second warrantless search 6 hours after the first search.

In Clayton v. State, 12 Md. App. 40 , 276 A. 2d 671 (1971), we approved a search “some six and one-half hours after the initial seizure.” In the case now before us, the vehicle was continually in constructive possession of the police from the time of appellant’s arrest, and an application for a search and seizure warrant was, under the circumstances, unnecessary. In Bailey, supra, upholding a warrantless second search 6 hours after the initial warrantless search, we said, at 108: “Under the rationale of Chambers , once that legitimate seizure was executed it was reasonable for the police to make a follow-up search of the vehicle at a later hour. The police were in legitimate ⁶⁹¹ possession of the vehicle. It had not been returned to the appellant or to anyone acting for him.

Under those circumstances, the police are not required to measure each and every subsequent investigative act with respect to that vehicle in terms of the exigency of that subsequent moment as if they were searching or seizing the vehicle for the first time.” We perceive only a quantitative difference in time measured by hours between Bailey and the instant case. We therefore hold that the seizure of the carbon residue from the exhaust pipe, be it by means of a penknife before the vehicle was started, or on a piece of paper placed under the exhaust after it was started, to be lawful warrantless search and seizure. SEIZURE OF BLOOD AND HAIR SAMPLES FROM THE APPELLANT’S PERSON WITHOUT HIS CONSENT Appellant’s fourth contention is more troublesome than the previous three. While the appellant was in the Prince George’s County Detention Center, 1 Sgt.

Summers (then Corporal) made application for a search and seizure warrant to authorize the removal of hair and blood from the appellant. A search warrant was issued by a judge of the Circuit Court for Prince George’s County. The warrant stated in part: “You a™e therefore hereby commanded, with the necessary and proper assistants, to search forthwith the said person, Bernard William Robinson for the evidence specified, to wit: cut and pulled hair samples from his head, body, and pubic area and a blood sample, and if the property be found there to seize it and seize any property found liable to seizure under the laws of this State . . . .” ⁶⁹² The warrant was returnable within five days from June 29, 1971. It was returned on the 30th day of June, along with the written inventory.

The inventory disclosed that the following items had