Ward v. State

Menchine, J., delivered the opinion of the Court. At about 1 a.m. on April 28, 1972, Dorothy Mae Ward, estranged wife of the appellant, and one Gerry Godbout were seated in the automobile of the latter, parked outside the wife’s apartment. A gunman approached the passenger side of the vehicle and fired five times into the vehicle. Godbout was killed; the estranged wife was not hit.

The gunman ran from the scene toward a vehicle that simultaneously had pulled out of the parking lot. The latter vehicle stopped, the gunman entered, and it departed the crime scene at high speed — but not before a witness had noted its description and tag number. He telephoned police. A prompt radio alert caused police within minutes to stop an automobile operated by David Victor Maness with Harry Edward Brockman a passenger.

Both were placed under arrest. At appellant’s trial Brockman was identified as the gunman; Maness as the driver of the escape vehicle. James Edward Ward was convicted by a jury in the Circuit Court for Prince George’s County for conspiracy to murder; accessory before the fact of murder and attempted murder. He was sentenced to life imprisonment.

On appeal he asks: “1. Was the Appellant convicted on the basis of evidence obtained by an unlawful search and seizure in violation of the Fourth Amendment to the United States Constitution? 2. Did the Lower Court commit reversible error in admitting into evidence an incriminating statement of the Appellant without a proper hearing as to its inducement? 3. Was the out-of-Court identification so impermissively suggestive and unfair as to create ¹¹⁶ a substantial likelihood of irreparable misidentification so as to constitute a denial of due process of law? 4.

Did the unreasonable and unjustified prosecutorial delay violate the right of the Appellant to a speedy trial under the Sixth Amendment to the United States Constitution? 5. Was there sufficient evidence produced at the trial to sustain the convictions? 1. Search and Seizure Appellant’s complaint that items unlawfully seized were admitted in evidence against him at trial is without record support. The State concedes that a search of appellant’s home on April 28, 1972 was constitutionally infirm.

It is quite clear from the record, however, that all items seized therein were returned to the appellant by court order. None was either offered or received in evidence at the trial. In a secondary complaint appellant contends that other tangible evidence offered and admitted in evidence constituted “fruits of the poisonous tree.” This complaint relates to: (1) a cassette tape “with voices discussing the items taken during the illegal search and seizure”; (2) “a letter [Exhibit 5] found subsequent to the initial search”; and (3) “a note [Exhibit 6] fourfd during a search of Mr. Maness’s car (an alleged co-conspirator).” We find no taint stemming from the unlawful seizure attaching to those items. The Cassette Tape The cassette tape was found by the appellant’s daughter in August, 1974 and thereafter was delivered by the wife to police authorities.

The record shows not the slightest evidence of State complicity in the seizure of the item. It was properly admitted in evidence. Coolidge v. New Hampshire, 403 U. S. 443, 487 , 91 S. Ct. 2022, 2048 , 29 L.Ed.2d 564, 595 (1971). In Herbert v. State, 10 Md. App. 279, 284-85 , 269 A. 2d 430, 432-33 (1970), we said: “Whatever wrong is done by the act of one ¹¹⁷ individual in taking the property of another, it is no invasion of the security afforded by the Fourth Amendment against unreasonable searches and seizures.

Burdeau v. McDowell, supra, at 475. When an individual obtains incriminatory matter from an accused, no matter how improperly, and such matter comes into the possession of the government without a violation of the accused’s rights by governmental authority, the exclusionary rule does not prohibit its use at trial.” (Footnote omitted) The Letter and the Note The letter, contrary to appellant’s claim, was in the possession of police months before the unlawful search of appellant’s premises. It had been addressed to the Chairman of the Prince George’s County Human Relations Committee and bore the signature of the appellant. The typed letter consisted of a diatribe against the Committee for an attack by it upon the Prince George’s County Police Department.

The letter ended as follows, “Why don’t you lousey BASTARDS doues [sic] yourselves with gasoline. I will gladly apply the match.” The note, also typewritten, was found during the course of a lawful search of the Maness vehicle. That search occurred prior to the unlawful search of appellant’s home and had no connection therewith. This note contained a description of the wife of the appellant; designated the location of her place of employment; listed the hours of her arrival at and her departure from the place of employment; and set forth the make, tag number and ownership 1 of an automobile that might be used to transport her from work to her home.

The note also gave the address and location of the apartment occupied by appellant’s wife. When the State offered the testimony of an expert FBI witness, an objection was interposed. ¹¹⁸ At that point the trial court and counsel at a bench conference discussed the intended purpose of the witness’s testimony and limitations to be imposed upon it. The following extracts from the record suffice to show the full tenor of the objection; the nature of an inquiry conducted out of the presence of the jury; and the ultimate opinion of the witness before the jury: “MR. DAWSON: Your Honor, the reason I said before, this gentleman has the typewriter.

The typewriter was taken from Mr. Ward’s home, which was suppressed, was used in trying to identify these two letters. That is the reason for my objection. This is doing indirectly what they could not do directly. MR.

NEAL: Your Honor, the two letters were presented to this man for comparison and the two letters were compared, Your Honor. We will not bring out any testimony concerning the typewriter. THE COURT: The typewriter was not presented. MR.

NEAL: Your Honor, the typewriter was presented to him at one time, but the typewriter was checked out against the letters, but we will elicit no testimony from an item which has been seized. The only thing we are asking for is a letter which came to the police department from an independent source and a letter which was found in Mr Maness’ car. Now, he was asked to compare these two letters, and it is only that testimony — ¹¹⁹ THE COURT: But you are not referring to any knowledge he gained by virtue of examining the typewriter? MR.

NEAL: No, Your Honor. The only thing we are bringing into it is two questioned documents, no typewriter whatsoever. MR. DAWSON: But Your Honor, he used the typewriter to check out whether or not these letters could have been typed on the same typewriter.

That typewriter was suppressed in 1972. THE COURT: But he is not going to use anything in regard to the typewriter. MR. DAWSON: He is using it indirectly.

THE COURT: He cannot use it in any way. He is only using it in comparison of those two letters, without regard to the typewriter. MR. DAWSON: But he had the typewriter and used it in comparison.

THE COURT: He does not have to develop everything that the man might know. His proffer is that he is only going to use what the man gained from looking at these two letters, without regard to any examination of the typewriter. Now that is his proffer, is it not? MR.

NEAL: That’s correct, Your Honor. THE COURT: I am going to hold him to that. For that reason it does not even go into the unlawful search and seizure. It is just like he had never seen the typewriter. ¹²⁰ MR.

DAWSON: Your Honor, when he took that typewriter in, incorporated evidence in regard to this evidence from the typewriter — THE COURT: He says he did not. MR. DAWSON: Could we ask the gentleman out of the hearing of the jury? * * * THE COURT: I intend to do that. THE COURT: If you gave us here an opinion today though to the jury, it would not be based on any examination of anything you have done with any typewriter that has been suppressed in this case?

THE WITNESS: That’s correct. Q Did the fact that you had the — physically had the typewriter add to or detract in any way the comparison of State’s Exhibits 5 and 6, the two letters? A It does not. The comparisons of State’s Exhibits 5 and 6 compared item for item, the typewriting on 6 with the typewriting on 5 I made independently of the typewriter, and it had no bearing on my conclusion relative to that comparison.

THE COURT: But solely from a comparison of the characteristics of the letters used in both of those letters? THE WITNESS: That is correct. ¹²¹ THE COURT: Under that basis I will let it in. MR. DAWSON: Objection.

THE COURT: Overrule. Return the jury. Q Mr. Shaneyfelt, could you step down here and by the use of these two charts that you photographed explain to the ladies and gentlemen of the jury what you found and what your conclusion was? A Yes, I would.

Now, State’s Exhibit 44, on the right as you are looking at it is an enlargement of the typewriting appearing on State’s Exhibit 6. The typewriting on State’s Exhibit 45, which is on your left as you see it, is the top portion down to that top portion of State’s Exhibit 5. In making this comparison of the typewriting that I mention I make the letter formations that this is a rare — this is a script type of type, that are not awfully common, in too common a use that has the script type letters, the formation like this. I find those same letter formations in both specimens.

The ‘m’s’ and ‘w’s’ in comparing them, W’ in Washington, not always the same letter appears, but a sufficient number appears as — and the ‘p’s’, I find in both specimens to be the same. The ‘g’ is like a written ‘g’ or a script ‘g’. You find those ‘g’s’ in midnight. These, I found all of the same characteristics in both State’s Exhibit 6 and State’s Exhibit 7.

The type style is the same. There is no variances. I then looked for broken letters and the things of a more individual nature and I find that there is very little difference in alignment. One of the things I look for is a letter printing too ¹²² high or too low or to the right or to the left of a bent letter.

I find that the typewriter does not have any misalignment to speak of, anything that is significant enough to arrive at any decision. The manner in which letters attach together, where the ‘t’ attaches to the T, whether or not it just about hits or doesn’t quite hit as it connects there, I find that they are all within normal limits. I find no significant differences that would let me say that this typewriter is different from that one. At the same time, I find everything similar.

I find everything — alignment is the same and in making comparisons of typewriting, if I have two specimens that develop to be different I do find these differences in alignment, and in this instance I find no differences in alignment. These are right along the line. There are no variations that are present here that are not present over here. Everything lines up very much the same.

In addition, the ‘o’s’, I find tend to type a little bit of design of the ribbon texture in the State’s Exhibit 6 and I find that same characteristic in ‘o’s’ and ‘a’s' in the center of the ‘a’s’ on there, indicating about the same pressure of typewriting. While I found no differences and not enough individuality to permit positive identification it was my conclusion that State’s Exhibit 5 and State’s Exhibit 6 could have been typed on the same typewriter. Q Were there any differences at all? A I found no differences at all, no differences at all.” We think it. is quite plain that the questioned documents ¹²³ were not derived from the unlawful search and were not “fruits of a poisonous tree.” We find that the circumstance that the witness had once possessed the illegally seized typewriter and had conducted other tests upon it, did not prevent him from expressing the opinion that the two exhibits were products of the same mechanical device.

The answer to appellant’s first question is: No, he was not convicted on the basis of evidence obtained by unlawful search and seizure. 2. The Appellant’s Statement The co-conspirator Maness, in the course of discussions relating to plea bargaining at his trial for the murder, agreed to testify as to appellant’s complicity in the killing. On July 9, 1974 Maness gave a deposition that implicated Ward as the person who had initiated a contract to have Brockman murder Mrs. Ward. 2 On July 10, 1974 a warrant was issued for the appellant, and he was arrested at the place of his employment. He was taken forthwith to police headquarters where he was made aware of the full panoply of Miranda rights.

He waived his Miranda rights and agreed to interrogation by police. When the State manifested an intention to offer the written statement in evidence the trial court dismissed the jury and conducted a suppression hearing out of their presence. Barhart v. State, 5 Md. App. 222 , 246 A. 2d 280 (1968). In the course of that hearing it was made crystal clear that the State was not proposing to offer in evidence any statement other than that which had been made on July 10, 1974.

At the conclusion of the suppression hearing, the court found that the statement was “voluntarily entered into, intelligently, knowingly, understanding^.” It subsequently was admitted in evidence. In a second string to his bow, appellant further contends that the statement was a “fruit of the poisonous tree,” citing ¹²⁴ Wong Sun v. U. S., 371 U. S. 471 , 83 S. Ct. 407 , 9 L.Ed.2d 441 (1963), and Everhart v. State, 21A Md. 459, 337 A. 2d 100 (1975). Those cases clearly do not bar the use of the subject statement. The previously described letter and note constituted the only tangible evidence shown to him on that date during the course of his interrogation.

We have heretofore pointed out that those documents were in no way connected with the search and seizure of April 28, 1972. Thus, there is no record support for appellant’s contention that he was confronted with the fruits of that unlawful search and seizure. The arrest, interrogation and statement of the appellant on July 10, 1974 were products solely of information gained from the co-conspirator Maness on the previous day. The statement of July 10, 1974 is in no sense a product of primary illegality.

Rather, it falls within the exception outlined in Wong Sun, supra, at 487-88 [417] [455]: “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged for the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).” The statement of July 10, 1974 was properly admitted in evidence. 3. Identification When it became apparent that the State would seek an in-court identification of the appellant by the witness Maness, an objection was interposed. In accordance with procedures approved in Smith & Samuels v. State, 6 Md. App. 59 , 250 A. 2d 285 (1969), cert. den. 397 U. S. 1057 (1970), the trial judge suspended proceedings before the jury and conducted a hearing out of their presence.

At its conclusion the trial judge declared that he would permit the ¹²⁵ identification testimony. The jury was then recalled and the witness Maness without objection made an in-court identification. He also testified, again without objection, that he previously had identified photographs of the accused. The identification issue was waived.

Jones v. State, 9 Md. App. 455, 457 , 265 A. 2d 271, 272-73 (1970), cert. den. 400 U. S. 906 (1970). 4. Speedy Trial In depth consideration of speedy trial decisions of the Supreme Court of the United States; of the Court of Appeals of Maryland; and of this Court was undertaken by the Court of Appeals in the case of Epps v. State, 276 Md. 96 , 345 A. 2d 62 (1975). Judge O’Donnell, for the Court, summarized the holding in