Taylor v. State

Orth, C. J., delivered the opinion of the Court. On 27 November 1972 the Grand Jury for Baltimore City handed up an indictment charging in the 1st count that MOSES B. TAYLOR on 21 September 1972 “feloniously with a dangerous and deadly weapon, did rob Gregory A. Brown [sometimes called Andre Brown] and violently did steal from him * * *” $930 in cash, a diamond ring, an “initial” ring, and a “man’s watch.” On 14 February 1973 Taylor filed in the Criminal Court of Baltimore a “Motion to Suppress” and a “Request for Hearing” thereon to be had prior to trial. 1 The Motion prayed for the suppression of property claimed to have been seized on 1 October 1972 by an unlawful search of the premises 1734 Druid Hill Avenue in Baltimore City. It also requested that a statement made by Taylor to the police be suppressed as obtained in violation of Taylor’s constitutional rights. The indictment came on for trial on 22 February.

Defense counsel directed the attention of the court to the Motions. We find it clear from the transcript of the proceedings that defense counsel desired a determination of the Motion to Suppress, as a preliminary matter, both as to the property seized and the statement obtained, that he made this desire known to the trial court, and that the court denied the request, reserving both the question as to the property and the question as to the statement for resolution during the trial. Trial proceeded. Taylor submitted under a plea of not guilty with the issue ³⁸⁸ before the court.

He was found guilty under the 1st count and sentenced to 10 years. I Taylor urges that he had an absolute right to have the matter of the suppression of the property seized determined before trial. That part of the Motion which concerned the suppression of the property is governed by Maryland Rule 729. 2 Section b 1 of the Rule provides: “When an indictment has been filed in a court or after a defendant has been held for the action of the grand jury and property seized may be used as evidence at the trial, a motion for the suppression, exclusion or return of such property on the ground that it was obtained by an unlawful search or seizure, shall be filed in the court having criminal trial jurisdiction.” This Taylor did. Section d, subtitled, “Hearing” reads in relevant part: “1.

Before Trial. When a motion is filed pursuant to subsection 1 of section b of this Rule, at least five (5) days prior to the trial date, ** * * the trial shall not commence until the motion * * * has been determined by the court. 2. Other Cases. In all other cases the court shall have discretion ³⁸⁹ to determine the motion as a preliminary matter or during the trial. * * *.” The initial inquiry is whether Taylor filed his Motion “at least five (5) days prior to the trial date.” On the transcript of the proceedings below, we think it a fair conclusion that the court, the State, and the defense assumed that the Motion had been filed at least five days prior to the trial date.

It is patent that on this appeal both parties so assumed. If, in fact, the filing of the Motion on 14 February 1973 (the date the docket entries show it was filed) was five days or more prior to 22 February, as the period is to be computed under the Maryland Rules of Procedure, the court below, by refusing to determine the Motion as a preliminary matter, did not comply with the provisions of Rule 729 d 1. Subsection 1 of § d does not require that a request be made for a hearing before trial on the motion. It flatly declares that when a motion to suppress is made and filed as designated, the trial shall not commence until the court has determined the motion.

We believe that the distinction between the compulsive “shall” and the permissive “may” is not inadvertent. Our view is buttressed by the immediately succeeding subsection 2 of § d which gives the court discretion to determine the Motion as a preliminary matter or during trial in “all other cases.” (emphasis added). We think it the clear intent of the Court of Appeals from the whole of section d that the hearing court not have the discretion with respect to subsection 1 that is expressly granted with respect to subsection 2. We conclude that an accused filing a motion pursuant to Rule 729 b 1 at least 5 days prior to the trial date is entitled as of right under § d 1 to have the motion determined before the trial commences.

Of course, the right to such a pre-trial determination may be waived, but we see no effective waiver on the record before us. Before trial commenced, defense counsel made abundantly clear that he desired to argue his motion. The court categorically asserted that it would “get to that when the warrant is offered in evidence”, thus effectively ³⁹⁰ forestalling a pre-trial determination of the motion. The court also deferred ruling on the admissibility of the statement, in which defense counsel apparently acquiesced as within the discretion of the court, but this clearly was not intended by him as a waiver of a pre-trial determination of the suppression of the property seized.

The court concluded: “Let’s proceed with the trial and I will reserve ruling on the motion to suppress until each bit of evidence is adduced, and then I will pass on it one way or the other at the time.” Although the court’s action was wrong if the Motion was filed five days or more prior to the date of trial, the deferring of determination with respect to the suppression of the property was a proper exercise of judicial discretion if the Motion was filed less than five days prior to the date of trial, for then Rule 729, § d 2 would apply. Rule 8 reads, inter alia: “In computing any period of time prescribed by these Rules, * * * the day of the act, event, or default, after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included [with designated exceptions not here relevant]. * * * When the period of time allowed is more than seven days, intermediate Sundays and legal holidays shall be considered as other days; but if the period of time allowed is seven days or less, intermediate Sundays, Saturdays and legal holidays shall not be counted in computing the period of time.” For the period 14 February 1973-22 February 1973, 17 February was an intermediate Saturday, 18 February was an intermediate Sunday, 19 February was an intermediate legal holiday (Washington’s Birthday under the Monday Holiday Act). It is clear under Rule 8 that the intermediate Saturday, Sunday and holiday are not to be counted.

It is equally clear that the day of trial is not to be included, for the period prescribed by Rule 729, § d 1 is “at least five (5) ³⁹¹ days prior to the trial date” (emphasis added), so the day before the trial date is within the period and the day of trial is without the period. The question is whether the day the Motion was filed is to be counted. The application of Rule 8 to the period here is the reverse of the usual application of the Rule. Usually, as the Rule envisions, there is an act, event, or default after which the designated period of time begins to run.

Action then must be taken within the designated period. For example, Rule 567, § a, provides that a motion for a new trial shall be filed within 3 days after the reception of the verdict. It is the day of reception of the verdict which starts the running of the period, and the designated period is computed by counting forward, excluding the day the verdict was received, requiring that a motion be filed in the future within the designated period. As to Rule 729, § d 1, however, the event on which the period is based is in the future, and the period designated is computed by counting backward from that future date.

In the usual application of Rule 8, its provisions with respect to act, event or default after which the designated period begins to run, operate to extend the time permitted the person against whom the designated period is to be applied; in the application of Rule 8 to the period designated by Rule 729, § d 1, the provisions operate to decrease the time permitted, if the day the motion is filed is not to be included. If the day Taylor filed the Motion is not to be included, the Motion was filed only four days prior to the date of trial. In such event the discretionary provisions of Rule 729, § d 2 were applicable, and not the mandatory provision of § d 1. We have discussed Rule 729 d and Rule 8 in this posture to highlight the problems inherent.

It may be that the Rules Committee will desire to propose amendments to clarify the Rules in this regard. In any event, to dispose of this appeal, we need not determine whether Taylor’s Motion was filed at least 5 days prior to the date of trial or not. 3 Regardless of ³⁹² whether the action of the court below in deferring the question of the suppression of the property seized for determination during the trial of the general issue was proper or improper, we believe that the court committed error requiring reversal of the judgment in not affording Taylor a fair hearing on his Motion during the trial. II Rule 729 contemplates a hearing on the matter of the suppression, exclusion, or return of property. Section d is subtitled “Hearing”.

Subsection 2 of § d, pertaining to the procedure when the case is tried before a jury, provides that “the hearing on the motion, or on an objection to the introduction of evidence alleged to have been obtained by an unlawful search or seizure, shall be out of the presence of the jury.” Section e anticipates that evidence may be proffered or submitted in support of or in opposition to the motion and provides that it shall be included as part of the record in event of any appeal. Taylor believes that he did not receive such a hearing. We share his belief. At the guilt stage of the trial Brown, the victim, recounted the circumstances of the robbery during the presentation of the State’s case.

He testified that $936 in cash, two rings and a watch were stolen from him. He was shown and identified the watch and the State offered it as Exhibit No. 1 for identification. Defense counsel objected. The court pointed out that it was offered only for identification and not received in evidence.

Defense counsel said: “I still think that at this ' point we are getting to the point where I would like to be heard on my motion. I think ³⁹³ that —.” The court interjected: “Not where it’s only offered for identification. It’s not in evidence. It’s just being identified. * * * This is not evidence.

I will not consider that as evidence at all at the moment.” Brown was shown and identified a ring bearing the initials “A.B.” as his property. It was admitted for identification over objection. The State called Detective Harold Rose, Criminal Investigation Division, Homicide Squad, Baltimore City Police Department, to testify in its behalf. He said that he arrested Taylor on 1 October 1972 about 5:30 a.m.

He was requested to explain the circumstances surrounding the arrest. Defense counsel objected. The transcript reads: “THE COURT: All right. Why do you object?

I can’t imagine what is objectionable about it so I’d like to hear it. MR. MURPHY [Defense Counsel]: I think we’re going to go into now a warrant and search and seizure and I am objecting to any identification at this point to preserve my right — THE COURT: You see, I don’t have the impression that the rest of you do. I don’t know anything about a warrant.

The question is simply as to the circumstances under which the arrest was made. I may have to strike out some evidence about the warrant, but I assume there wasn’t because I heard nothing from the State’s Attorney. I will overrule the objection.” Rose explained that he was in the process of investigating a “double murder” and received certain information, including a name. “[A]s a result of doing a check on this name, [I] learned that there was an active assault and robbery warrant for this subject. With this information and with the information I had received I also drew up a search and seizure warrant for that address.” The State offered the search warrant for identification and defense counsel objected.

The court said: “You are objecting to marking the warrant-for identification? That is extreme caution, it seems to me; this is not evidence. I will not hear the warrant, I will ³⁹⁴ not hear anything that is in it, but I will let it be marked for identification.” The State then offered the warrant into evidence. The court asked defense counsel if he had an objection to the warrant.

Counsel replied that he had no objection to the warrant itself. “I have filed a motion to suppress certain evidence. My objection goes to the evidence, not to the warrant.” The court, however, considered the objection as going to the warrant and sustained it — “The warrant is not properly proven at this point.” Rose thereupon identified the warrant as one he drew which was signed by a judge of the District Court and directed to Taylor and 1734 Druid Hill Avenue. He said it was “activated” at 5:30 a.m. on 1 October 1972, “at which time numerous members of C.I.D. and uniform went to that location and enforced the warrant.” The State again offered the warrant into evidence. Defense counsel objected and the objection was overruled.

The court examined the warrant and the application for it and asked why the information in the affidavit was not probable cause for the issuance of the warrant. Defense counsel replied: “[Y]our Honor, as the Court is well aware now, we are now concerned with a double homicide in this case. As a matter of fact, no charges have ever been placed against this man for a double homicide. We are concerned today with an alleged assault and robbery.

The warrant that the Court has read specifically describes what the officers were looking for at the time they served the search and seizure warrant at the time they arrested the defendant. The State will attempt at some point, I am sure, to introduce