Whiting v. State

KENNEY, J. A jury sitting in the Circuit Court for Baltimore City convicted Wesley Whiting, appellant, 1 of first degree murder, armed robbery, possession of a deadly weapon openly with intent to injure, first degree assault, and theft under $500. Appellant was sentenced to life imprisonment for the first degree murder conviction and to a consecutive twenty-five year term of incarceration for the robbery with a deadly weapon conviction. The remaining convictions merged. He presents two questions on appeal, which we have slightly reworded: ²⁸⁹ 1.

Did the suppression court err in denying the motion to suppress evidence taken from appellant’s “residence”? 2. Was the evidence sufficient to sustain appellant’s convictions? For the reasons that follow, we affirm the judgments of the circuit court. FACTUAL AND LEGAL HISTORY William Moore was last seen at his job as a Correctional Officer around 1:35 p.m. on April 5, 2001.

He did not report for his shift the next afternoon. When he did not report the following day, his supervisor asked Kedrick Wilson, another correctional officer, to check on him. Wilson tried to telephone Moore several times, but never got a response. Wilson asked Wortham Hall, a mutual friend, to check on Moore.

Around 5:00 p.m. on April 7, 2001, when Hall went to Moore’s home at 1136 Homewood Avenue, he saw that Moore’s car was parked on the street, that mail was piled up at the door, and that the back door had tape on the lock so that it would not lock. Hall remained outside and called the police from his cell phone. Baltimore City Police Officers Michael Lind, Dave Peters, and John Carroll were among the officers responding to Hall’s call. Lind went inside Moore’s home through the back door and observed that the kitchen area had been ransacked.

When the officers searched the house to secure it, they saw a brown stain on the dining room carpet. They saw “a large amount of blood all over the wall and the carpet and everything else leaving a trail that was the brown stain on the carpet that we saw in the dining room area.” The officers checked the basement and found Moore’s body lying on the steps. Melvin Stallings, a crime laboratory technician, arrived at the house around 5:10 p.m. He photographed the house, lifted fingerprints, and sketched the locations of possible evidence.

Among the items noted were a pair of sweatpants, running ²⁹⁰ shoes, tennis shoes with suspected blood, possible footprints, and samples of suspected blood. Lissette Rivbra, Rana Creamer, and Nina White, other crime lab technicians, processed the house after Stallings’s shift had ended. Rivbra reported that they collected 39 fingerprint lift cards. They explained to the jury where each card was taken.

One of the items the technicians recovered was a Rubbermaid trash can lid, which was found at the bottom of the steps between the first and second floor. The trash can itself was missing. Lieutenant Kim Wilson, a co-worker and good friend of Moore’s, testified that Moore was homosexual. Wilson told the jury that photographs of the crime scene did not reflect how Moore’s house usually looked.

She described Moore as “very, very particular, very, very neat, very organized, very detailed about how he put everything in his house everywhere, everything had a particular place, and he was very, very neat.” She said that he had a pair of athletic Shoes that were “all white; real, real clean.” She testified that the shoes depicted in a photograph of the crime scene were not the shoes she had seen at Moore’s house. Wilson said that Moore had had two televisions in his home. Wilson told the jury Moore’s cell phone number and that he had kept the phone charger in his house. She testified that Moore had called her most recently on March 30, 2001, at 8:52. 2 On cross-examination, Wilson agreed that Moore “would have people over to his home.” She also agreed that if Moore saw someone who needed money, Moore would give him work and pay him.

Homicide Detective Ronald Berger testified that he responded to 1136 Homewood Avenue at 5:26 p.m. on April 7, 2001. He videotaped the crime scene. At trial, he presented to the jury a photograph showing a calendar book on a night ²⁹¹ stand, and told the jury that every day from the beginning of the year had a slash mark, up to and including April 5, 2001. Berger also testified as an expert in blood stain pattern analysis.

He explained that the blood stains on the wall indicated that the source of some of the blood was about a foot off the ground, and that there were signs of a struggle resulting in the smearing of blood droplets on a portion of the wall. According to Berger, “signs of bleeding were present and suggestive of a violent encounter which extended through the first floor between the front and back doors.” Berger also concluded that “the final stage of a beating was low near the floor at the point of the living room of [sic] recess of the north wall.” Berger testified that he executed a search warrant on April 27, 2001, at 810 East Preston Street, the place were appellant allegedly lived. From a second floor rear bedroom, he recovered photographs, a letter addressed to appellant, and a letter addressed to Crystal Whiting. Detective Berger returned to the premises on May 3, 2001, to interview Robert Jones, also known as “Crystal Whiting.” While there, Detective Berger observed a trash can in the second floor rear bedroom.

Berger said that he did not recall seeing the trash can during the first search, but said that he had not been looking for a trash can at that time. Detective Berger obtained a search warrant the following day and recovered the trash can at that time. Detective Berger told the jury that, on May 16, 2001, he spoke to Kevin Smith, an inmate with appellant at Central Booking, about inculpatory statements appellant had made. Berger reported that, at Smith’s request, he wrote a letter to the Maryland Parole Board informing it of Smith’s cooperation.

Detective Kevin Turner also examined Moore’s home. Turner showed the jury photographs depicting a TV stand in the bedroom with the television missing and a living room table with dust around the outline of “something that was the size of a television set.” In addition, Turner retrieved a Sprint ²⁹² telephone number from Moore’s wallet and contacted Sprint to get information about the last phone numbers called from that phone. As a result of records he received from Sprint, Turner learned that no phone calls were made from the phone in the six days prior to Moore’s death. With the records, Turner also was able to trace the phone to Derrick Venable.

Turner did not recover the cell phone, but did recover the battery and charger from Venable’s room. On cross-examination, Turner acknowledged that Venable had told him that his friend Jamal had tried to buy the phone three or four days before he bought it. Detective Turner also contacted Rubbermaid and learned that trash cans of the style found in appellant’s room had been shipped to Lowe’s and to an Ace Hardware store in Maryland in ten shipments of 36 each between January and September 2000. Robert Jones testified that he lived with appellant at 801 East Preston Street in April 2001.

Jones said that they had an intimate relationship, and that, because he considered himself appellant’s wife, he called himself “Crystal Whiting.” Jones reported that, in early April 2001, appellant had left the East Preston Street home and returned two or three hours l'ater with a bite or cut mark on his chin and a swollen finger. According to Jones, appellant said that “he had been in a fight with someone, and he left and they might not have been breathing.” Jones reported that appellant returned with a cell phone and $40 in cash. Jones said that appellant was wearing two rings when he returned, but that they may have been the same ones appellant had worn when he left. Jones acknowledged, however, that he told the detectives in April 2001, that he had assumed that appellant got the rings from Moore’s house.

He said that appellant returned wearing a different pair of pants than he had worn when he left. Jones also said that appellant had been wearing “a pair of tens;” the “tens” were Timberland boots. Jones also said that he and appellant went to get medical treatment for appellant’s finger on April 9, 2001, the day after the injury. Medical records indicated that appellant also had injuries on his shoulder and cheek. ²⁹³ Jones identified the trash can as being the one in the bedroom that he and appellant shared.

Jones explained that appellant “brought [the trash can] in from outside.” Jones also testified that appellant sold the cell phone to “some kid around the neighborhood” for $15. Jones read a letter he had written appellant telling him he would let him know if he heard anything about the phone, because “there was some talk in the neighborhood about a phone that was being used by some young kids that belonged to someone that had got killed around the neighborhood,” and he wanted to know if it was that phone. Jones testified that appellant sometimes used the name “Lamont Wilson.” On cross-examination, Jones repeated that appellant wore two rings when he left home and two when he returned home, and that the rings could have been the same. He also said that when he spoke to the detective the first time, the detective told him he could go to jail.

Salvatore Bianca, a serologist with the police, testified as an expert in trace analysis. Bianca examined the trash can lid found at Moore’s house and the trash can found on East Preston Street. Both were made by Rubbermaid and both were the same “visual color, style, shape, brand, had the same slide locking function, and the lid physically fit onto the trash can and engaged the locking function.” Suspected blood from the trash can and from the lid were submitted to the Maryland State Police for DNA analysis. Bianca concluded that it was possible “for this trash can lid to at one time be associated” with the trash can found in appellant’s bedroom, but he could not say for certain whether they were parts of the same set.

Bruce Heidebrecht, a DNA analyst with the State Police Crime Lab, testified that DNA from the blood found on the Rubbermaid trash can lid matched DNA from an oral swab from Moore, and that DNA in the blood taken from the trash can matched DNA in the oral swab from appellant. Lorraine Lansey, a fingerprint expert employed by the Baltimore Police Department’s Latent Print Unit, testified that fingerprints ²⁹⁴ found on the outside of the trash can lid matched appellant’s left middle and left ring finger, and that a palm print found on the outside of a letter holder matched appellant’s left palm. Prints matching appellant’s right palm were found on the second floor hallway closet doorframe. A latent print in blood on a wall partition was compared to appellant’s but did not match.

Dr. David Fowler, acting Chief Medical Examiner for Maryland, performed an autopsy on Moore on April 8, 2001. Using photographs taken at the autopsy, Fowler showed the jury “multiple impact sites” on the side of Moore’s face and nose. He reported that Moore’s skull had been crushed and that “brain matter” “ooz[ed] out of the cranial cavity,” and that the palm of Moore’s hand had been split, indicating a “severe amount of force.” He testified that Moore also had abrasions on his shoulder and defense wounds on the forearm. Fowler testified that there were “a minimum of 41 impacts to the head area and a minimum of 13 impacts to the hand area,” as well as three defensive wounds on the arm.

He opined that a hammer or tire iron was used, explaining that knuckles or hands would not have enough force to fracture the skull or cause the lacerations. Fowler explained that “no single blow” would have killed Moore, and that death was the result of “a cumulative effect of multiple blows, mostly to that area in the back of the head.” He further explained that the number of wounds “implies some dynamic situation where there is movement during at least ... an initial phase of the assault, but then again, there is a very concentrated area in one spot, which implies that at some stage it became a static assault.” He opined that Moore had been killed at least 36 hours prior to the autopsy. Kevin Smith testified that, in April and May 2001, he was incarcerated at Central Booking with appellant. He reported that appellant told him that “he got into a struggle with the victim, and that they was like battling for a long period of time.

He like used words to the effect like, it took me a long time to kill this mother-fucker. He was battling all the way to ²⁹⁵ the end.” Smith added that the victim was a homosexual and a correctional officer. According to Smith, appellant said that the struggle occurred “right before [appellant] got locked up,” and that it lasted between 20 and 35 minutes. According to Smith, appellant told him that he went to Moore’s house to rob him because he had heard that Moore kept money at home.

Smith told the jury that appellant showed him injuries on his hand and chest. He stated that appellant also said he took a cellular phone from the victim and sold it to some kids. He said that appellant told him that the incident “wasn’t too far” from where appellant lived. Smith reported that conversation and spoke to Detectives Ronald Berger and Albert Marcus on May 16, 2001.

Smith acknowledged that he expected that the detectives “would in some type of way help me,” in exchange for the information. He reported that Detective Berger wrote a letter on his behalf when he appeared before the Parole Board and that his parole was reinstated. Smith acknowledged that he was also cooperating with Alcohol, Tobacco, and Firearm (ATF) agents and that an ATF agent and a Drug Enforcement Agency agent appeared on his behalf on the prior charge, which was stetted. On cross-examination, Smith explained that his parole was for robbery with a deadly weapon and that, had his parole been violated, he could have been sentenced to up to 20 years of incarceration.

Jeffrey Bolden, a friend of appellant’s, testified that appellant lived in an abandoned home on Preston Street. He said that appellant had telephoned him collect prior to April 2001. He reported that appellant telephoned him at 12:46 p.m., 4:09 p.m., and 4:17 p.m. on April 6, 2001, and that the name “Moore” appeared on the Caller ID. Bolden went on to say that he had called that phone at 4:16 p.m. and 4:17 p.m. that day, and that appellant had returned his call from that phone at 4:30 p.m.

Bolden also testified that he received calls from the cell phone to his house at 1:08 a.m. and 1:12 a.m. the next day, but none after that. Bolden recounted that when he spoke to appellant on the afternoon of April 6, 2001, appellant told him that a friend had let him use his cell phone. ²⁹⁶ Bolden testified that, on April 6, 2001, he gave appellant a ride in the car for three or four minutes, and that appellant did not have any bites or scratches or show any discomfort. Bolden acknowledged, however, that it was dark outside and that appellant was fully clothed. Rodney Carter testified that he had hired appellant as a security guard in 1991, and that they had remained friends.

He testified that appellant had telephoned him from Moore’s cell phone at 5:12 p.m. on April 6, 2001. According to Carter, appellant sounded normal during their conversation. Derrick Venable testified that he lived at 721 East Preston Street, around the corner from Homewood Avenue and down the street from the 800 block of Preston Street. He said that he did not know appellant but had seen him “[a] couple of times” “[a]round the neighborhood.” Venable testified that he had chosen appellant’s photograph from a photo array and identified appellant at trial as the person who had sold him Moore’s cell phone and charger for $15 on a Saturday in April 2001.

Venable said that he had lost the phone, but that the police had come to his house and taken the charger. Chanika Baker, a friend of Venable’s, testified that Venable and his friend Jamal had telephoned her and her friend Danielle Williams several times from Moore’s phone, the first call being at 8:22 p.m. on April 7, 2001. Detectives Turner and Berger interviewed appellant on April 30, 2001. Appellant told the officers that he had bought the cell phone around the end of March from a white drug addict he knew as “Slick,” and that three days later he had sold it to some kids.

Appellant denied that he knew of any correctional officer who lived in East Baltimore. Appellant testified that he bought the cell phone for five dollars from a “white guy in my neighborhood named Slick,” and that he sold it to Derrick Venable. Appellant explained that he did not make telephone calls with it at first because the battery was dead and he had to charge it. He said that he knew Moore from the neighborhood, and explained that he had been inside his house because Moore had once paid him to ²⁹⁷ clean his house.

He said that he told the detectives during the interview that he did not know a correctional officer who lived in East Baltimore because he did not know Moore’s full name or that he was a correctional officer. Appellant testified that he had regarded Jones as his wife, but that he also had had a girlfriend. He asserted that he had been injured during a “domestic issue” with his girlfriend. Appellant disputed Jones’s testimony, denying that he had money when he returned home with injuries, and countering that Jones had brought the trash can into the house.

He said that he got his blood on it when he was injured on April 22, 2001. Appellant acknowledged that he knew Kevin Smith from jail, but alleged that Smith had seen copies of his charging papers and had seen an article about his case in the newspaper. He conceded that he had been untruthful with Detectives Berger and Turner about his sexual orientation, explaining that he did not know why they were asking about it and that he found it too personal to reveal. The defense also called Detective Berger as a witness, who testified that he found the trash can on the second floor bedroom on May 4, 2001.

Additional facts will be set forth as needed in our discussion of the questions presented. DISCUSSION I. Motion To Suppress As noted, Detective Berger twice searched appellant’s bedroom at 810 East Preston Street. Prior to trial, appellant filed a motion to suppress the evidence recovered during the second search. Appellant alleged that the evidence had first been observed by Detective Berger while he was in the building without a warrant, and, therefore, it was obtained illegally.

The State asserted that appellant had no standing to raise the issue. At the suppression hearing, appellant offered as evidence of standing the affidavit for a search warrant, stating that “ ‘a ²⁹⁸ witness who reported knowing [appellant] said when interviewed that [appellant] had told him that he had been living at the address determined to be the vacant house at 810 East Preston Street.’ ” Appellant also submitted a letter addressed to one of his aliases, a college registration form in appellant’s name, and a letter from appellant to Crystal Whiting, found at that address. The State countered with a deed for the property showing that it was owned by the Housing Authority of Baltimore City. The State also submitted a certified statement dated April 1, 2002, which named the lessees and reported that they had been evicted for non-payment of rent on May 16, 2000.

The statement also reported that “[a] call [to] BGE indicated that the meters are still hooked up, but there has been no activity reflected over the past two years based on their records.” In addition, the State submitted the registration confirmation offered by appellant, pointing to the address of 1038 Liberty Road, dated August 31, 2000; a copy of the Central Booking processing information indicating that appellant stated his address was 609 29th Street; a copy of appellant’s motor vehicle record, which indicated addresses of 550 Saint Mary’s Street and 828 East Preston Street; and a copy of appellant’s April 22, 2001 arrest information, giving his address as 609 North Ellwood Avenue. Detective Ronald Berger testified that when he visited the property in April and May of 2001, the front door to 810 East Preston Street was sealed. Detective Berger did not recall whether the house had a functioning lock at the rear door, but stated that the rear door was unlocked when he went there. He said that the rear door had a doorknob and a broken window, and that there was a “bolt-type” lock above the door knob.

Detective Berger also testified that there was bedding on the floor in two locations in the house and that there was a television in one of the rooms. Robert Jones testified that he stayed at 810 East Preston Street, but that he did not pay rent to anyone. He said that “quite a few people” lived there. He said that he did not have ²⁹⁹ keys to the premises, and did not know whether anyone else had keys, but that the back door was always unlocked.

According to Jones, he had “experienced” the electricity being on while he was there. On cross-examination, Jones testified that appellant lived at 810 East Preston Street, and agreed that appellant “basically had a room of his own.” He did not know how long appellant had lived there. Jones reported that appellant had a key to the door to his room and that he locked it. Jones said that appellant did not want anyone to come into his room.

The prosecutor argued that appellant had no standing to contest the entry into the room, and pointed out that Detective Berger had been able to enter the room when he executed the search warrants. Defense counsel argued that “there are a lot of vacant houses in this City, a lot of people live in vacant houses.” He conceded that the Housing Authority could have gone into the property and dispossessed appellant, but asserted that it could not go into the house and seize property for a criminal prosecution. The suppression court found that appellant was “occupying the property in some manner,” but commented that there was no evidence that any of the personal property there belonged to appellant. It agreed that appellant did not expect the “general public to walk in and out and to pick up his property,” but noted that “the public policy of the City of Baltimore and the State of Maryland is to keep these properties vacant,” and that “the property owner who culpably allows their property to be occupied by squatters” was violating the City Housing Code.

It noted that appellant was committing a criminal