Thomas v. State

Bishop, J., delivered the opinion of the Court. Randolph Thomas, the appellant, was indicted for first-degree premeditated murder, felony murder, armed robbery, use of a handgun in the commission of a violent crime, and various lesser included offenses, related to an incident of February 11, 1980. He was tried by a jury in the Criminal Court of Baltimore on September 4-16, 1980. The jury convicted Thomas of both felony murder and armed robbery.

The trial judge merged the armed robbery conviction into the felony murder conviction and imposed a sentence of life imprisonment, suspending all except fifty years of that term. On appeal Thomas asks: "1. Did the trial court err in denying Appellant’s motion to suppress predicated upon the lack of specificity of the search warrant? 2. Did the trial court err in failing to provide defense counsel with the complete grand jury testimony of Melvin Thomas? 3.

Did the trial court err in denying motions to strike two jurors for cause? ²⁸⁸ 4. Did the trial court err in denying Appellant’s motion to dismiss predicated upon the denial of a preliminary hearing? 5. Did the trial court err in overruling Appellant’s objection to a question by the prosecutor implying that Appellant had committed an unrelated crime? 6. Did the trial court err in instructing the jury that searches and seizures leading to the introduction of evidence against Appellant were valid and authorized? 7.

Did the trial court err in permitting the jury to take into the jury room during deliberations only the court’s instructions regarding the definition of the alleged offenses and not matters such as the State’s burden of proof, the presumption of innocence, and the definition of 'reasonable doubt’? 8. Did the trial court err in permitting the prosecutor in closing argument to argue facts not in evidence?” For the reasons set forth in this opinion we answer each and all of the appellant’s questions in the negative, and we affirm his conviction. The Facts On February 11, 1980, at approximately 9:00 p.m., three armed men wearing ski masks entered Charlie’s Bar on East Baltimore Street. At gunpoint one of these robbers took $77.00 from the bar’s cash register.

The State contended at trial, and the Baltimore City jury concluded, that this robber was the appellant. A second gunman, subsequently identified as one Darnell Williams, shot a bar patron in the face with a 12-gauge shotgun, instantly killing the victim. The third gunman, one Michael Mebane, having previously pled guilty to second-degree murder, testified as a ²⁸⁹ State’s witness at the appellant’s trial. Mebane testified that Thomas was the robber who stole the $77.00 of cash.

Further testimony was provided by Detective James Ozazewski who testified that subsequent to the offense he interviewed Randolph Thomas. According to Detective Ozazewski, the appellant initially admitted involvement in the crime but subsequently denied participation. The appellant himself testified that he spent the evening of February 11, 1980 watching television. He speculated as to the "actual” identity of the other robber as a friend of Williams and Mebane.

Randolph Thomas testified that certain physical evidence of the crime, seized from the appellant’s home, belonged to Mebane. Additional facts will be presented with the discussion of each issue. I. Search Warrant A search and seizure warrant signed by a reviewing judge on February 20, 1980, supported by a written application and attached affidavit, was submitted to the lower court. On the date the warrant was signed, the police executed the warrant at the premises designated in the warrant.

Items seized included a pair of tennis shoes and part of a shotgun stock. At trial the appellant moved to suppress the seized items on the grounds that they were obtained during an illegal search and seizure. Specifically the appellant contended that the search warrant inadequately described the premises of the search. At the suppression hearing, on September 4, 1980, the lower court learned that the search warrant described the place to be searched as: "907 E. Lombard Street which is an eleven story high rise consisting of the first floor being a Lombard Street address with a white door with the numerals 907 above the door [,] in the City of Baltimore!.]” ²⁹⁰ The warrant, which used wording identical to the application for the warrant, listed the concealed property to be seized, namely: "Black ski mask with yellow rings around the eyes, nose and mouth, red and blue ski mask, revolver, sawed off shot gun, tennis shoes [,] which is evidence relating to the commission of a crime pertaining to Homicide of Robert Lee Perrear and Robbery of Charley’s Bar [.]” Defense counsel contended that the search and seizure warrant was "too general” because it did not state the appellant’s name, and did not direct the police officers to a specific apartment.

No relevant authority was cited in support of these contentions, and defense counsel conceded that no requirement existed for the inclusion of a suspect’s name on a search warrant. 1 The lower court, seeing the warrant’s affidavit, and learning that the appellant’s brother served as informant for the affidavit, denied the motion to suppress. The court stated that the warrant was sufficiently specific. In a later hearing, on September 5, 1980, the lower court asked the defense counsel if he had been fully heard in his argument on the motion to suppress. With the court’s indulgence, defense counsel expanded the grounds of the motion to include a challenge to the reliability of the affidavit’s informant, Melvin Thomas, the appellant’s older brother.

The lower court again denied the motion to suppress the seized items having read the statements attributed to Melvin Thomas. The items seized from the residence of the Thomas family were admitted into evidence in the trial of Randolph Thomas. The shotgun stock found at the appellant’s residence was proven to be the murder weapon, and the tennis shoe matched a shoeprint found at the crime scene. ²⁹¹ On appeal Randolph Thomas contends that the lower court erred in denying his motion to suppress, and on the same basis, his motion for a new trial. The basis for his challenge to the search and seizure is now phrased "that the warrant contained a description of the place to be searched which was so general as to fail to meet the specificity requirement of the Fourth Amendment.” The appellant does not support his contention with reference to apposite Maryland case law, but rather chooses to distinguish cases in which this Court upheld the use of items seized during the execution of search warrants at multiple-unit dwellings.

In his brief the appellant states in part: "The decisions of this Court on this issue have turned on whether the police knew or should have known that the building was a multiple-occupancy structure. In both Delly v. State, 30 Md. App. 391 , 352 A.2d 331 (1976), and Butler v. State, 19 Md. App. 601 , 313 A.2d 554 (1974), this Court held that the police could reasonably have believed the relatively small buildings at issue to be single-family dwellings; the street address was therefore sufficiently specific. It is the clear implication of both cases, however, that where a conventional multiple-unit apartment building is at issue, greater specificity is required.” The appellant then distinguished between the facts of Delly and Butler and his own circumstances, and asserts: "In the present case, the building at issue is an 11-story apartment structure which could not reasonably have been perceived by anyone as a single-family dwelling. Accordingly, the warrant constituted a 'general warrant’ purporting to give the police the authority to search numerous residences which they had no probable cause to search.

The motions to suppress and for a new trial should have been granted.” ²⁹² Having examined the record and the authority relied on by the parties to this appeal, we find that the search warrant used by the police in this case did not constitute an illegal general warrant. Maryland law required no stricter test of the specificity of a search warrant than that the warrant, "shall name or describe, with reasonable particularity the ... building, apartment, premises [or] place .... to be searched... Harris and Schmitt v. State, 17 Md. App. 484, 487 , 302 A.2d 655 (1973), citing Md. Code Art. 27, § 551. In Harris, supra, at 486 quoting from Frey v. State, 3 Md. App. 38, 46 , 237 A.2d 774 (1968) we found that the purpose of a requirement for specific warrants was the prevention of "a random or blanket search in the discretion of the police in violation of the Fourth Amendment to the Federal Constitution. ..” We then found that this purpose is not well-served by a strict test; Harris, supra, at 487 , but rather we observed that: "There is, of course, no formula which can be used to measure the particularity with which premises must be described in a search warrant, the adequacy of such description in every case necessarily depending on the facts and circumstances there present.

Tucker v. State, 244 Md. 488, 496 . A description of a place to be searched is ordinarily sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended. Steele v. United States, 267 U.S. 498 ; Saunders v. State, 199 Md. 568 . In determining whether the description of the place to be searched meets these standards, it is permissible to look to the affidavit as well as the warrant since the affidavit is a part of the warrant and incorporated by reference therein.

See Fry v. United States, 9 F. 2d 38 (9th Cir.).. .quoting Frey v. State, supra at 46, 237 A.2d 774 (1968). By weighing the facts of this case against the standard set forth above, we find that the appellant’s right to protection ²⁹³ against unreasonable searches was not violated. The record clearly discloses that the police officers who applied for and who executed the subject warrant easily identified the premises to be searched. Therefore, in the absence of allegations that the officers conducted a "dragnet” search of the apartment building, we must conclude that the purpose of the Fourth Amendment was not violated.

See Marron v. United States, 275 U.S. 192 (1927), holding that the rationale for the warrant requirement is the limitation of police discretion. Rather than sweeping through the building, the police officers executing the warrant for 907 East Lombard Street traveled directly to the Thomas apartment, and served the warrant on Mr. George Thomas, identified on the back of the warrant as the "suspect’s father.” Once inside the apartment the police found the precise items of contraband they had searched for. The success of this search "dissipated much of [the] force” of the appellant’s contention. Tucker v. State, 244 Md. 488, 496 (1966).

The officers knew which building to enter because of the notation on the front of the search warrant. They knew which apartment to search because of the information in the attached affidavit in support of the warrant. This affidavit does not state the number of the apartment to be searched, but it adequately identifies the apartment by providing the name of the resident, Randolph Thomas, the appellant. The information cited in the affidavit is attributed to the appellant’s brother, Melvin Thomas, who approached the police following the earlier arrests of Randolph Thomas for possession of a sawed off shotgun, and disorderly conduct.

The absence of a suspect’s name from a search warrant, as in this case, does not make the warrant defective, Saunders v. State, 199 Md. 568, 575 , 87 A.2d 618 (1952), because the police may learn from the warrant’s affidavit the information they require to make a proper search. See Frey, supra at 46 in which police obtained a warrant for "an apartment house” at 2008 East Pratt Street, and identified the specific rooms by reading the names of the occupants as listed in the attached affidavit. See also Couser v. State, 36 Md. App. 485 , ²⁹⁴ 493-494, 374 A.2d 399 (1977), aff'd on other grounds, 282 Md. 125 (1978), in which an otherwise defective warrant was supported by the affidavit’s description of premises which were specifically incorporated by reference in the warrant. The case of Giles v. State, 10 Md. App. 593 , 271 A.2d 766 (1970), cited by the appellant at trial, is clearly inapposite to the present case.

In Giles , we held that a search warrant was invalid because it both failed to describe the premise to be searched, and failed to incorporate by reference an affidavit which did describe the premises. In the present case we are not concerned with the abuse of a "blank” warrant. Instead the instant case exemplifies the general rule stated in 79 C.J.S. Searches and Seizures § 78 (1981): "A description of the premises to be searched, contained in a separate paper attached to and referred to in, the affidavit even though not signed, initialed or otherwise identified as a part thereof, is sufficient.” citing U.S. v. Meeks, 313 F.2d 464 (6th Cir. 1963). In his brief the appellant refers us to a different summary of the case law at Annot., Search Warrant: Sufficiency or Description of Apartment or Room to be Searched in Multiple-Occupancy Structure, 11 A.L.R. 3rd 1330,1333, (1967), which states: "Consonant with the general requirement that search warrants contain a particular description of the premises to be searched, a search warrant directed against a multiple-occupancy structure will usually be held invalid if it fails to describe the particular subunit to be searched with sufficient definiteness to preclude a search thereunder of other units located in the larger structure and occupied by innocent persons.” The author of the above-referenced statement continues, however, and states: "Even though a search warrant directed against a multiple-occupancy structure fails to physically de ²⁹⁵ scribe the particular subunit to be searched, it will ordinarily not be held invalid where it adequately specifies the name of the occupant of the subunit against which it is directed.” Id. at 1340.

Based on the foregoing analysis of the law, applied to the present case, we hold that the lower court did not err in denying the appellant’s motion to suppress.

II

Grand Jury Testimony At the appellant’s trial, Melvin Thomas appeared as a State’s witness and testified concerning his brother’s association with Michael Mebane and Darnell Williams, who were suspects in the Charlie’s Bar crimes. Melvin Thomas stated that when he questioned his brother about the crime, the appellant told him that he had "heard about” the incident. At an immediately subsequent bench conference, the State claimed that it was surprised by the trial testimony of Melvin Thomas, and that this testimony was "substantially different” from the witness’s statements to the Grand Jury, which the State produced which showed that Randolph Thomas, in response to his brother’s inquiry about the incident, replied, "I got involved in some thing and the man got hurt.” Over defense objection the State was permitted to treat Melvin Thomas as a hostile witness. Defense counsel then requested to see the entire minutes of the Grand Jury.

The trial court denied this request, after reviewing the testimony and finding that there was a "clear contradiction” between Melvin’s testimony before the Grand Jury and his testimony before the trial court. The court did permit the defense to see relevant portions of Melvin’s prior testimony before the Grand Jury for the limited purpose of cross-examination. During subsequent direct examination, Melvin Thomas denied that his brother had admitted involvement in the Charlie’s Bar crimes and attributed the information he told the Grand Jury to Michael Mebane. On cross-examination Melvin testified that the police "twisted” his statements to ²⁹⁶ them, and "threatened” him in the presence of his family.

On redirect examination Melvin stated that he "had trouble” with not only the police, but also with the co-defendants and "a lot of other people”, and that he had been shot, all of which he believed resulted from his cooperation with the law enforcement authorities. On appeal Randolph Thomas contends that the trial court erred in not providing his defense counsel with the entire transcript of Melvin’s Grand Jury testimony. Citing Dennis v. United States, 384 U.S. 855 (1966), the appellant argues that "a criminal defendant is entitled to the disclosure of grand jury testimony where he can demonstrate a 'particularized need’ for the information.” He believes that such a need for the complete Grand Jury testimony of Melvin Thomas was shown, and that this need outweighed the interest of the State in protecting Melvin Thomas or preserving the secrecy of the Grand Jury. The State replies that the appellant received the portions of prior testimony relating to Melvin’s prior inconsistent statement and also that the appellant waived the issue by not seeking to have the entire Grand Jury testimony introduced into evidence for identification at trial, citing Van Meter v. State, 30 Md. App. 406, 410 , 352 A.2d 850 (1976).

From our examination of that portion of Melvin’s Grand Jury testimony which was made a part of the record, and from appellant’s arguments concerning his need for the entire prior testimony, we find that á "particularized need” for the additional testimony was not demonstrated. The transcript which was provided to the appellant was adequate for the defense’s stated purpose of conducting an "intelligent cross-examination.” No further purpose was alleged which showed an abuse of the trial court’s discretion in this matter. Sutton v. State, 25 Md. App. 309, 314-315 , 334 A.2d 126 (1975). The appellant’s contention that the State’s interest in protecting Melvin Thomas had "long disappeared” by the time of trial is contradicted by what Melvin Thomas believed was the result of his cooperation with the State including his alienation and his being shot. ²⁹⁷ Based on the foregoing the trial court did not err in restricting the appellant’s access to the Grand Jury testimony.

III

Jurors During voir dire examination of the prospective jurors, the trial court asked the panel whether any of them had been a victim of the types of crimes charged in the appellant’s indictment. Among others Juror No. 84 stated that several years before he had been the victim of an armed robbery, and Juror No. 258 stated that several years before she had been robbed and assaulted. Each of these jurors was asked by the trial court whether their victimization would prevent them from rendering a fair and impartial verdict in the appellant’s case. Each of them