Waine v. State

Thompson, J., delivered the opinion of the Court. The appellant, Peter Sutro Waine, was convicted by a jury in the Circuit Court for Harford County, Judge Albert P. Close presiding, of two counts of first degree murder and larceny of an automobile. He was sentenced to two consecutive terms of life imprisonment and one consecutive ²²⁴ term of fourteen years. On this appeal the following questions are raised: “1.

Did the trial court abuse its discretion in denying appellant’s suggestion of removal based on prejudicial pretrial publicity? “2. Should the court have ordered suppression of the fruits of a series of searches and seizures on the ground that the warrants authorizing them were issued on the basis of affidavits of probable cause derived from an illegal inventory search? “3. Did the court err in permitting the introduction, in the State’s case in chief, of testimony concerning prior misconduct of the defendant, which did not result in a criminal conviction? “4. Did the court err in refusing to permit a psychiatrist called by the defense to testify concerning the unlikelihood of appellant’s committing an act of violence? “5.

Was the evidence sufficient to justify submitting the larceny count to the jury?” On March 24, 1975, the appellant was arrested in Douglas, Cochise County, Arizona, when it was determined there was an outstanding warrant against him in Maricopa County, Arizona. It was subsequently learned additional warrants were outstanding in Massachusetts. The automobile in w'hich the appellant was stopped was registered in Maryland to Marilyn Smith. The Maryland police were called and requested to investigate whether the appellant was driving the automobile with the permission of the owner.

Several pieces of identification and false identification were seized, and a statement was taken by the Cochise County Police. On March 31, 1975, the appellant was transported to Maricopa County, Arizona. The bodies of Lyle W. Ager and Marilyn Smith were discovered on April 14, 1975, in their house in Abingdon, Maryland, bludgeoned to death by numerous blows with a ²²⁵ blunt instrument. The police made this discovery after receiving information from a passing cyclist that the passerby thought he had observed Miss Smith’s body through the window of the house.

It was learned that the victims were last seen in the presence of the appellant and had been dead for a considerable time. A warrant was obtained for the appellant’s arrest. The next day, the Maryland State Police contacted the Maricopa County, Arizona Sheriffs Department. The Sheriffs Department in Cochise County, Arizona was also contacted and informed of the homicide investigation that was in progress.

The appellant testified that he had visited the victims in early March, 1975. He denied any knowledge of the homicides and stated that he had been given permission by the victims to use the automobile. He described himself as a “total passivist” who was incapable of violence. The appellant’s brother and a psychiatrist were called to the stand to confirm the appellant’s testimony.

Additional facts will be supplied in the discussions of the several contentions. I. Removal Prior to trial the appellant filed a suggestion for removal based on prejudicial pretrial publicity. In support of this he introduced numerous newspaper articles from the local papers as well as an article from The Sun, a Baltimore newspaper. These articles appeared in the newspapers substantially within a three month period.

Arguments on the suggestion for removal were first heard more than five months after the final article had appeared. The trial judge found that there had been very little publicity in the seven months prior to trial. He denied the suggestion for removal but agreed to pursue the matter on voir dire examination. Five panels of prospective jurors were examined on voir dire both as a group and individually.

As a group the jurors were asked the standard questions such as whether they had ever had any contact with the appellant, his family, or any of the State’s witnesses, and whether that would in any way ²²⁶ affect the juror’s ability to render a fair and impartial verdict. Those jurors who were not excused during this questioning were then examined individually. Each juror was asked if he had formed an opinion. Each juror was also asked if he had “any knowledge of the facts and circumstances of the case, either through word of mouth or by newspaper, radio, or television.” Defense counsel was then allowed to examine the individual juror.

When it was discovered that at least one juror had read an article which appeared in the Baltimore News American after the trial had commenced, additional voir dire was granted and the jurors were instructed not to read the newspaper accounts of the trial. While at least two-thirds of the five panels of prospective jurors stated that they had heard of the case in the news media prior to the voir dire examination, the majority of these stated that their exposure was limited to an article or two many months prior which had simply stated that the crime had occurred. Any juror who revealed that that exposure might impair his ability to render a fair and impartial verdict was excused for cause. More than thirty jurors stated that they had no knowledge of the crime prior to their appearance in the courtroom.

Appellant cites Sheppard v. Maxwell, 384 U. S. 333 , 86 S. Ct. 1507 , 16 L.Ed.2d 600 (1966), for the proposition that intense local interest, because of the sensational nature of the case, coupled with the large number of prospective jurors who had seen some newspaper article dealing with the case add up to more than a “reasonable likelihood” that the jury selection process in this case was contaminated. In Sheppard five volumes of Cleveland newspaper clippings were introduced into evidence, many of which demanded a conviction. Television and radio stations were permitted to set up broadcasting facilities inside and outside of the courthouse to give a “blow by blow” description during the proceedings. All except one juror testified at voir dire to having gained prior knowledge of the case from the news media.

Every prospective juror received anonymous calls and letters as well as calls from friends regarding the impending ²²⁷ prosecution. Inasmuch as the facts of this case do not show the “inherently prejudicial publicity which saturated the community” which was evident in Sheppard, supra, 384 U. S. at 363 , 86 S. Ct. at 1522 , we reject the appellant’s argument that Sheppard controls the instant case. The question of whether a criminal case 1 should be removed to another jurisdiction is one which rests within the trial court’s discretion. Maryland Constitution, Article IV, § 8; Maryland Rules 542 a 1 and 738 b.

The burden is on the appellant to show that he had been prejudiced by adverse publicity and that the voir dire examination of the prospective jurors, available to him, would not be adequate to assure him a fair and impartial trial. Sizemore v. State, 5 Md. App. 507, 511 , 248 A. 2d 417 (1968); Mason v. State, 12 Md. App. 655, 678 , 280 A. 2d 753 (1971), cert. denied, 263 Md. 717 . As a general rule to meet this burden the appellant must show: “(1) that the newspaper article is prejudicial (2) that a juror has read the prejudicial newspaper article, and (3) that the jurors’ decision at the trial was influenced by that newspaper article.” Barber v. State, 16 Md. App. 235, 239 , 295 A. 2d 814 (1972), quoting Presley v. State, 224 Md. 550, 555 , 168 A. 2d 510 , cert. denied, 368 U. S. 957 , 82 S. Ct. 399 , 7 L.Ed.2d 389 . Newspaper disclosures including factual reports on the capture of an accused are not in themselves prejudicial.

Sizemore v. State, supra at 511; Bremer v. State, 18 Md. App. 291 , 307 A. 2d 503 (1973), cert. denied, 269 Md. 755 , U.S. cert. denied, 415 U. S. 930 . Appellant points to several articles which erroneously stated specific other crimes of which the appellant was accused. Even if we assume that this may be prejudicial under certain circumstances, it would not be prejudicial, where as here, there was no showing that any of the jurors read these articles. Defense counsel thoroughly examined the potential jurors to determine what they had read, and no juror revealed an ²²⁸ awareness of other charges.

Indeed, a jury was available to the appellant which had no prior knowledge of any charges. Where there was a lengthy hiatus between the majority of the newspaper reports and the trial, we cannot assume that an unbiased trier of fact cannot be found. See Gibson, Tate & Austin v. State, 17 Md. App. 246, 259 , 300 A. 2d 692 (1973). If, as in Sheppard v. Maxwell, supra, publicity is so massive and widespread that it is clearly prejudicial, voir dire examination may not always provide sufficient protection, but where as here, the publicity was sporadic, not inherently prejudicial and preceded the trial by several months, a trial court does not abuse its discretion by relying on voir dire to ascertain prejudice.

Kable v. State, 17 Md. App. 16, 30 , 299 A. 2d 493 (1973), cert. denied, 268 Md. 750 . From the record we find no abuse of discretion on the part of the trial judge.

II

Search and Seizure After the jury had been sworn, the appellant moved to suppress any evidence seized pursuant to several warrants because of a prior taint. A hearing was held out of the presence of the jury. The trial judge determined that the probable cause on which the warrants were issued was not derived in an illegal manner requiring suppression of the evidence. The appellant alleges that the trial judge erred in this ruling.

At the hearing on the motion to suppress, extensive testimony was taken concerning the facts surrounding the appellant’s arrest and the examination of his effects. The testimony showed that at the time the appellant was arrested he was a houseguest of Mr. and Mrs. Louis Leidman, residents of Douglas, Arizona. Mr. Leidman and a Mr. George Steele were passengers in the automobile driven by the appellant when it was stopped by Sgt. Furr and Det.

Vasquez, of the Douglas Police Department. The appellant was shown and allowed to read a teletype message stating that charges were pending against him in Maricopa County, and for that reason he was placed under arrest. Sgt. Furr drove the appellant to the police station, while Det.

Vasquez ²²⁹ drove the automobile to the impounding lot, where he parked and secured it. The appellant testified that after he was placed under arrest, he asked Leidman to hold his belongings for him. When Detective Vasquez returned to the police station, he was informed that Leidman had telephoned the station and requested that an officer come to his home and pick up the appellant’s property, because he wanted nothing more to do with the appellant. The detective informed the appellant of this and was told something to the effect of, “Go ahead.

Thanks.” Detective Vasquez and a Detective Dabovich then proceeded to the Leidman home. Upon their arrival, they were shown to the bedroom in which the appellant had been staying and were asked to get the baggage that was at the foot of the bed and the property in the closet and in the dresser drawers out of the house. Mr. Leidman testified that he was so upset at the appellant that if the police had not been involved, he would have simply thrown the appellant’s belongings in the street. Several of the suit cases were open so the contents of the drawers and closet were either placed in those cases or in a green plastic garbage bag.

The appellant was allowed to call the Leidman home after he had been processed at the station. He again asked Mr. Leidman to hold his belongings for him, but was informed that they had already been removed by the police. The officers returned to the Douglas Police Station with the appellant’s personal effects and placed them in an office. Detective Vasquez testified that they then proceeded to inventory the items in accordance with departmental regulations.

The purpose of this was to secure valuables. Inasmuch as valuables were all that they were looking for, they are all that were listed. He had been informed by his lieutenant and the Leidmans that the appellant had been using different names while in Douglas. Also, the teletype printout had mentioned prior crimes involving deceit.

For these reasons, he was also looking for identification cards of other individuals during the inventory search. The identification cards that were uncovered were separately packaged from the other items. These included three ²³⁰ military service records of the appellant, an Aberdeen National Bank Book, two library cards, a video club card, a GEICO identification card, and a Smithsonian Associates membership card all in the name of Lyle Ager. Checkbooks in the names of Pike and Baldwin were also observed.

The property was then secured, but no copy of the inventory was given to the appellant. On March 31, 1975, the appellant was transferred to Maricopa County, Arizona. Five of the seven pieces of luggage were inventoried by that police department on April 1, 1975. On April 15, 1975, Detective David Paul of the Maricopa County Sheriffs Department received a call from Trooper Larry Howard of thé Maryland State Police, advising him that Maryland was investigating a homicide and that the appellant was a suspect.

Trooper Howard also inquired as to whether certain specific items of evidence were in the possession of the Maricopa County Sheriffs Department. Detective Paul proceeded to the property room to check the invoices and noticed that two of the suitcases were unopened and uninventoried. In order to protect the police department, he inventoried these two bags at that time. He testified that he may have looked at one other bag.

He had no knowledge of an inventory search conducted by the Douglas Police. On May 6, 1975, Detective Paul was informed that an orange burlap bag containing camera equipment had been discovered in the trunk of the police car which had transported the appellant from Douglas. He inventoried this bag and discovered camera equipment, rolls of exposed film, rolls of unexposed film, and an instamatic camera showing that ten pictures had been taken. This roll was developed in order to determine the owner of the bag.

The film revealed pictures of both victims. The appellant commences his challenge to the trial court’s refusal to suppress the evidence by stating, “Assuming — which appellant does not — that the Douglas police were lawfully in possession of his property, the . .. item-by-item search far exceeded the permissible scope of bona fide ‘inventory.’ ” Contrary to Md. Rule 1031 c 5, no argument ²³¹ has been offered in support of the threshold question whether the police were in lawful possession of the appellant’s effects. We shall treat the issue just as concisely by noting that there is evidence on the record which shows that the appellant consented to the police acquisition of the luggage. The police procedure seemed on its face entirely reasonable under the circumstances.

For these reasons, it is unnecessary for us to analyze and analogize this procedure. See Cady v. Dombrowski, 413 U. S. 433 , 93 S. Ct. 2523 , 37 L.Ed.2d 706 (1973), and Duncan and Smith v. State, 34 Md. App. 267 , 366 A. 2d 1058 (1976), cert. granted April 5, 1977, dealing with the community caretaking function of police with respect to automobiles; United States v. Blackburn, 389 F. 2d 93 (6th Cir. 1968); United States v. Lipscomb, 435 F. 2d 795 (5th Cir. 1970). Mere legal custody of the appellant’s effects, however, does not dispense with constitutional requirements of searches thereafter made. Cooper v. California, 386 U. S. 58, 61 , 87 S. Ct. 788 , 17 L.Ed.2d 730 (1967); United States v. Chadwick, 433 U. S. 1 , 97 S. Ct. 2476 , 53 L.Ed.2d 538 (1977).

Unless the warrantless search falls within one of the recognized exceptions to the warrant requirement, it is per se unreasonable. Coolidge v. New Hampshire, 403 U. S. 443 , 91 S. Ct. 2022 , 29 L.Ed.2d 564 (1971). The warrantless search of suitcases and luggage has been justified both as a search incident to a lawful arrest under the principles expressed in Chimel v. California, 395 U. S. 752 , 89 S. Ct. 2034 , 23 L.Ed.2d 685 (1969), and as an “automobile exception” under Carroll v. United States, 267 U. S. 132 , 45 S. Ct. 280 , 69 L. Ed. 543 (1925). Waugh v. State, 20 Md. App. 682 , 318 A. 2d 204 (1974), rev’d on other grounds 275 Md. 22 , 338 A. 2d 268 (1975).

The search in this case, however, was not “essentially contemporaneous” with the arrest to satisfy the unity of time, Preston v. United States, 376 U. S. 364 , 84 S. Ct. 881 , 11 L.Ed.2d 777 (1964) or within the permitted search perimeter, Chimel, supra, requirements which are necessary for a legitimate search incident to lawful arrest. See Dixon v. State, 23 Md. App. 19, 26 , 327 A. 2d 516 (1974). Once the luggage had been seized by ²³² the police and transported to the police station there were no exigent circumstances existing that evidence might be removed or destroyed before a search warrant could be obtained to qualify for the Carroll doctrine. See Chadwick, swpra.

Furthermore, for a search to be lawful under either of these exceptions the police must have had probable cause to have made the search. Waugh v. State, 275 Md. 22, 28 , 338 A. 2d 268 (1975). The State does not contend that probable cause existed prior to the obtaining of the warrants. The only exception applicable, therefore, to the instant case would be the so called “inventory search.” South Dakota v. Opperman, 428 U. S. 364 , 96 S. Ct. 3092 , 49 L.Ed.2d 1000 (1976).

In South Dakota v. Opperman, supra, the Supreme Court dealt with inventory searches of automobiles. Three purposes which serve to legitimatize warrantless police intrusions into the interior of an automobile following its seizure were listed: (1) protection of the police from danger; (2) protection of the police against claims and disputes over lost or stolen property; and (3) protection of the owner’s property while it remains in police custody. Inventory searches, therefore, are not conducted in order to discover evidence of crime. They are conducted in accordance with police departmental policy to list what is in police custody.

Probable cause to seek a search warrant would be irrelevant. Id. 428 U. S. at 370, n. 5 , 96 S. Ct. at 3097, n. 5 (1976). See also Mackall v. State, 7 Md. App. 246 , 255 A. 2d 98 (1969); Kleinbart v. State, 2 Md. App. 183 , 234 A. 2d 288 (1967); St. Clair v. State, 1 Md. App. 605 , 232 A. 2d 565 (1967). In United States v. Chadwick, supra, the Supreme Court distinguished between automobiles and luggage when dealing with a search incident and automobile exception to the warrant requirement.

While it did not expressly deal with inventory searches, we are obligated to re-examine the purposes for this type of search when dealing with luggage. We see no reason why in an appropriate case an inventory search would not be as applicable to luggage as to automobiles, if the reasons for the station house inventory are as valid as the justifications for an automobile ²³³ inventory. As pointed out by Justice Blackmun in his dissent: “It is also possible that today’s decision will not have much impact because other doctrines often will be available to sustain warrantless searches of objects in police custody. As the Court acknowledges, ante, at 15 n.9, no warrant is necessary when the authorities suspect the object they have impounded has dangerous contents.

Moreover, police may establish a routine procedure of inventorying the contents of any container taken into custody, for reasons of security and property conservation. Cf. South Dakota v. Opperman, 428 U.S. 364 (1976).” Id. at 21. Unlike an automobile which usually is placed in a lot protected only by a fence and subject to vandals, the luggage was placed in a storage room in the station secured by lock and key.

The main concern of the police, therefore, would be to establish an accurate list to protect them from false claims. The procedure employed by the police in this case provided minimum relief from this type of claim, particularly as a copy of the inventory was not furnished to the appellant. It does not appear that the police had reason to believe that the luggage contained some immediately dangerous instrumentality, such as an explosive. See Chadwick, supra at 433 U. S. 15 , n.9, 97 S. Ct. 2485 n.9.

If this had been the case, they would have searched the luggage before transporting it to the station house. While the basis for the inventory search, under these circumstances, seems slightly more than marginal, those occasional dangers which do exist cannot be entirely discounted. South Dakota v. Opperman, supra, 96 S. Ct. at 3101 (Powell, J. concurring). The harmful consequences in those rare cases where there is injury to either person or property could, perhaps, justify this intrusion.

We agree with Justice Blackmun that the police may, under the appropriate circumstances, establish a routine procedure for inventorying the contents of any container lawfully seized. ²³⁴ In Dixon v. State, supra at 40, this Court quoted from 48 A.L.R.3d 537 , 544: “ ‘An essential requirement to a valid inventory search is that the police must have acted in good faith in conducting the inventory, and must not have used the inventory procedure as a subterfuge for a warrantless search. It has therefore been held that where the conduct of the police was inconsistent with its contention that the search was conducted for inventory purposes, the search was unlawful.’ ” As pointed out by Justice Powell in his concurring opinion in South Dakota v. Opperman, supra 96 S. Ct. at 3102 , the upholding of inventory searches does not provide a general license for the police to examine all the contents of the container. The police’ are not justified in sifting through papers secured under the procedure employed here. See also Opperman, supra 96 S. Ct. at 3106 n. 6 (Marshall, J. dissenting).

Compare Mackall v. State, supra at 251, where the inventory of the contents of a suitcase in the trunk of an automobile was found to be a bona fide attempt to safeguard the owner’s property and Kleinbart v. State, supra at 199 where the search of a suitcase in the trunk of an automobile was found inconsistent with protective custody. Whether an inventory search was justified must depend on the facts of the individual search. In the case at bar, it is obvious that the Douglas, Arizona police were doing more than simply listing valuables when the initial inventory was made. There was testimony that the officers searched through and read the appellant’s papers.

It was certainly not necessary to read the papers in order to note that they were in the luggage. Detective Vasquez testified that he had been informed that the appellant had been using various identities. While he had never before inventoried business cards, he separated them in this instance because they may have been evidence. It is clear to us, therefore, in our independent judgment of the facts, Walker v. State, 12 Md. App. 684, 694-695, 280 A. 2d ²³⁵ 260 (1971), that the officers went beyond the scope of a reasonable inventory search and their conduct amounted to an unreasonable search.

Similarly, we find that the inventory search in Maricopa County on April 15, went beyond the appropriate boundaries. Detective Paul testified that during this inventory, he looked at numerous slides. His reason for this was “curiosity.” This invasion of the appellant’s privacy is not within the reasonable limits of safeguarding property and person, and thus supports the proposition that a search was being conducted. On the other hand, we find that the inventory of the orange burlap bag on May 6, 1975, was reasonable.

Even though the officer developed previously undeveloped film, testimony reveals that this was done to assist him in determining the owner. Unlike the other situations, this was not an unjustifiable pretext to invade the appellant’s privacy because, although the bag was found in the police vehicle which several weeks earlier had transported the appellant, the bag could have belonged to someone else. Appellant urges that as the searches were illegal, any evidence derived therefrom must be suppressed. Although nothing was seized during these intrusions, the doctrine of the “fruit of the poisonous tree” extends the scope of the