Wilkins v. State

Orth, J., delivered the opinion of the Court. On 1 October 1969, James Cole and Ola Lucille Wilkins were jointly indicted by the Grand Jury for Prince George’s County for violation of the narcotics laws on 18 August 1969. By an addendum to the indictment Cole was ¹¹⁶ informed that the State intended to prosecute him as a subsequent offender. On 16 October each filed a written plea of not guilty and elected a jury trial.

They were jointly tried under the indictment before a jury in the Circuit Court for Prince George’s County on 13 January 1970. Each was convicted of the unlawful control of heroin (2nd count). Cole then elected to have the court determine whether he was a subsequent offender and upon hearing the court determined that he was. Cole was sentenced to 5 years.

Wilkins was sentenced to 3 years. Her sentence was suspended and she was placed on probation for a period of 3 years under conditions specified. They appeal, filing a joint brief. I “DID THE LOWER COURT ERR IN ADMITTING INTO EVIDENCE THE SEARCH WARRANT AND AFFIDAVIT IN SUPPORT THEREOF, AS WELL AS ADMITTING INTO EVIDENCE ALL OF THE IRRELEVANT, UNRELATED AND PREJUDICIAL FACTS AND CIRCUMSTANCES CONCERNING THE POLICE SURVEILLANCE OF THE DWELLING IN QUESTION ON DAYS OTHER THAN THE DATE ON WHICH THE DEFENDANTS WERE CHARGED WITH POSSESSION AND CONTROL OF THE CAPSULE OF HEROIN?” We made plain in Price v. State, 7 Md. App. 131 that the admissibility of evidence obtained by a search and seizure warrant claimed to be invalid was a matter exclusively for the trial court.

In Cleveland v. State, 8 Md. App. 204 , we affirmatively stated that when the court has found such evidence admissible the jury does not have the ultimate determination of whether or not the search and seizure was reasonable. We pointed out that Maryland Rule 729, applicable whenever property is claimed in a court to have been obtained by an unlawful search or seizure, § a, provides that if the case is being tried before a jury a hearing on a motion to suppress or objec ¹¹⁷ tion to the introduction of such evidence shall be out of the presence of the jury, § d. If a motion to suppress is made and granted prior to trial, the evidence shall not be offered in evidence by the State at trial on the merits, § g 1. If such motion is made and denied prior to trial, the ruling is binding at trial, unless the trial judge in the exercise of his discretion grants a hearing de novo on the defendant’s renewal of his motion, § g 2.

But whether the trial judge accepts the pretrial ruling as binding or grants a de novo hearing on the point, if property is found by the court to have been lawfully obtained, it shall be submitted to the jury and no evidence pertaining to the legality of the seizure shall be presented to the jury. Thus, if the property was obtained under a search and seizure warrant, the affidavit on which the warrant was based does not go to the jury. 8 Md. App. at 208 and 213. 1 The pretrial ruling in any event is reviewable on appeal even though no further objection was made to the introduction of the evidence at trial, §§ f and g 2. Appellants, claiming that property had been obtained by an unlawful search and seizure, moved prior to trial that evidence seized under a search and seizure warrant be suppressed because the warrant had not been issued on probable cause. The motion was heard and denied.

When the indictment came on for trial the State in its opening statement told the jury without objection being made: “The charges that the Grand Jury have indicted these two people on are a result of police work that was conducted several days before that date, surveillance that was set up at the address 603 60th Place in Fairmount Heights, which is the residence of these two people. The surveillance showed that an informant went into the house on several occasions. He stated, the ¹¹⁸ informant told the police that Mr. Cole was selling heroin. Money was given to the informant and he did make a purchase, the purchase was field tested and it turned out to be heroin.

Other items were sworn to in an application for a search warrant, a search warrant was issued by this Court, and I believe it was then Chief Judge J. Dudley Digges issued a search warrant. The search was conducted on the 18th and as a result of the search a narcotic, heroin, was found * The State called as its first witness Detective Elmer L. Snow of the Prince George’s Police Department assigned to the Vice Squad, Narcotics Section. After eliciting the officer’s experience in investigating violations of the narcotics laws, the State ascertained that he had been in the vicinity of 603 60th Place, the premises allegedly occupied by appellants, on 13- August 1969. The State asked him why he was there.

Appellant objected and at the bench defense counsel said: “Your Honor, he can testify as to what he was doing here and things of that nature and how it came that he was called to be there, but why he was there, he has already testified that his job is to investigate narcotics violations. It makes it appear to the jury that he is there because a violation in fact occurred. He can testify as to how the complaints came into the office and how he came to be on. the scene, but the question that is asked is too general.” The objection was overruled and Snow said he was there to investigate a narcotic complaint. Thereafter without objection, Snow testified that on 13, 14 and 15 August 1969 he conducted a surveillance of the premises 603 60th Place.

On 13 August he was there about 7 hours concealed in a telephone truck. On one occasion he saw a “Negroe male” knock on the aoor “for quite a while” and then walk around the side of the house out of the officer’s sight. About 10 minutes later the same man came from the rear of the house and walked away. On another occasion he saw a “Negroe ¹¹⁹ male” whom he knew as Milton Nichols enter the rear door of the premises after knocking about 5 minutes.

Later Nichols came out and walked away. On 14 August the officer saw Nichols enter the premises and later a man known to the officer as Leon “Gummy” Spriggs went into the premises. On 15 August the officer “contacted a confidential source * * * completely searched his person and requested that he go to 603 60th Place and purchase narcotics with money belonging to Prince George’s County.” The officer saw the “confidential source” enter the rear door of the premises and remain about 3 minutes. When he came out of the house he drove away in Snow’s personal automobile.

Snow followed him and about two blocks away the source stopped and gave Snow four capsules containing a white substance which proved to be heroin. Snow was asked by the State to identify certain documents which had been marked for identification as State’s Exhibit No. 1. He identified them as a return of a search warrant, a search warrant and the application for the warrant. He was the affiant.

He was asked: “And the testimony that you have given us, is that contained in part of the affidavit?” and replied: “Yes, it is.” He was then asked: “And there are other items, are there not, in the affidavit that you have not testified to here, is that right?” and he replied: “Yes, sir, there is.” The State then offered the documents into evidence and appellant objected. The transcript discloses the following as occurring at a bench conference out of the hearing of the jury: “THE COURT: What is your objection? MR. WESLOCK (defense counsel) : This search warrant contains many references to many statements as to former convictions, one with reference to a former conviction of the defendant Cole.

THE COURT: But wasn’t that on an additional attachment later ? MR. WESLOCK: Here it is on my copy of the ¹²⁰ application for search warrant. It is down about in here.

That is No. 1. MR. SHEPHERD (Assistant State’s Attorney) : I can’t hear what he is saying because of this machine. THE COURT: The application contains a statement of former implication.

MR. SHEPHERD: They are legitimate statements which purport probable cause upon which the warrant is based. THE COURT: If you will stipulate, Mr. Weslock, it is based on probable cause we don’t need to put that in. MR.

WESLOCK: I can’t do that. I have got to go through the motion of objecting to the admission of the evidence in any event when it is proffered. THE COURT: I am not sure that the question of a person’s criminal record can be put into evidence in this manner. MR.

SHEPHERD: That is about the only thing. If we can somehow judicially strike that out, I have no objection. But we are entitled to that stipulation that there was probable cause or an exhibit that supports probable cause. We are entitled to either or.

THE COURT: He won’t stipulate to that. So what we will do we will allow this into evidence with the understanding that before it is sent to the jury we will in some manner cover this part that would indicate the past record. MR. SHEPHERD: Just the part concerning his criminal record.

MR. WESLOCK: May I continue on my objection? There are other items in here in addition to that, such as reference to known narcotics users and known convicted narcotics users who were observed going into the premises, the statements concerning the informant, and he is, I ¹²¹ assume, not here today to testify. Is he?

Is that correct? MR. SHEPHERD: No. MR. WESLOCK: So it would have the same effect as hearsay evidence in this case.

THE COURT: I would think that the other part is all right except for the fact of the criminal record. We will delete that if it is shown to the jury. It may not even be necessary that the jury-view it. That will be up to you.

MR. SHEPHERD: It is evidence. I would ask that all evidence be taken into the jury. THE COURT: Then we will in some manner cover this up.

MR. SHEPHERD: That is fine. THE COURT: We will advise the jury they can’t see that part of it. MR.

SHEPHERD: My only point is that unless he is willing to stipulate we have probable cause to go in there we are entitled to show that we had probable cause. All of this other stuff supports that. MR. WESLOCK: Of course it would be highly prejudicial.

THE COURT: We assume, Mr. Shepherd, you have researched this and find it is proper ? MR. SHEPHERD: Yes, sir. I have discussed it this morning with Mr. Marshall, as a matter of fact.

MR. WESLOCK: On that point we recently had a case — THE COURT: We can go into this later, if you want to. But right now we are going to allow it. (Whereupon, counsel returned to the trial tables and the following proceedings were had in open court in the hearing of the jury:) MR.

SHEPHERD: I offer into evidence State’s Exhibit No. 1. THE COURT: It will be received with the stip ¹²² ulation that the Court made as to that part of it.” The application for the warrant, the warrant, and the return of the warrant were admitted in evidence. The introduction of the application for the warrant was error. At a hearing prior to trial the judge presiding at the trial had ruled that the warrant was valid.

We see nothing to show that the judge did not consider his pretrial ruling as binding and was granting a de novo hearing on the point. But even if he was hearing the question de novo, the question of probable cause was not for the jury. The Assistant State’s Attorney was incorrect when he asserted that unless appellants stipulated there was probable cause for the issuance of the warrant, the State was entitled to place evidence relating to probable cause before the jury. At the close of all the evidence, when motions for judgment of acquittal had been made and denied, the question of the search warrant affidavit came up again out of the jury’s presence.

The court requested the Clerk to cover up that place in each of the warrant and application which mentioned appellant’s prior criminal record. Then the court said: “Gentlemen, as the Court understands it the question of probable cause as to whether or not the search warrant should have been issued is certainly not a question that is left to the jury.” Defense counsel agreed but the Assistant State’s Attorney said, “It is evidence.” Of course, as we have pointed out, it was not evidence on the general issue, and the question of probable cause was not for the jury. The court then said that while it was evidence “for the purposes of the record,” it did not see where it is necessary that the jury view it. “I would commend to you that you just don’t give the jury No. 1 (the warrant, application and return) and protect it for the record.” The Assistant State’s Attorney said: “Fine. He has testified from it.

Let it go at that. That way there can’t be any question but that they won’t know about that (the’prior record).” Defense counsel said: “Right. ¹²³ Because it is a risky business because they can always look under a sheet of paper and nobody would ever know.” The matter came up again later. The transcript reads: “MR. WESLOCK (Defense counsel) : The search warrant affidavit will not be submitted.

THE COURT: It will not be. MR. SHEPHERD (Assistant State’s Attorney) : It is admitted but won’t go to the jury. THE COURT: It is admitted but won’t go to the jury.

Mr. Clerk, that is an exhibit but don’t let the jury have it when you give the others to them. MR. SHEPHERD: I think since Exhibit 1 is in evidence I think the State would be permitted to read portions thereof. THE COURT: I think either one of you can, and read any part and don’t give it to the jury and don’t make the mistake of reading any of that record part.

You can refer to it.” The court charged the jury. There were no exceptions. Counsel presented closing arguments which were not transcribed. No objections were made during the course of the arguments.

The posture of the matter is that it was error to admit the application for the search warrant into evidence at trial on the merits. It was, of course, properly admissible on the question of probable cause, which question was to be heard out of the jury’s presence. But we think in the circumstances here that the error was harmless. The application was not viewed by the jury.

There was no objection to the testimony of the affiant as to his observations on 13, 14 and 15 August. Rule 522 d 2. And while it would have been error for the State to read the application or portions of it to the jury in closing argument, we do not know that the State did so from the record before us, even though the court indicated it would so permit. And if it did so read to the jury there was no ¹²⁴ objection made and in any event the question was not preserved on appeal.

We hold that any error relating to the admission of the search warrant and affidavit in support thereof does not require reversal of the judgments and that the propriety vel non of the introduction into evidence of the personal observations of the officer conducting the surveillance was not preserved for appellate review. 11 “DID THE LOWER COURT ERR IN DENYING DEFENDANTS’ MOTIONS FOR JUDGMENT OF ACQUITTAL MADE AT THE CLOSE OF THE STATE’S CASE AND AT THE CONCLUSION OF ALL OF THE EVIDENCE PRESENTED?” The motion for judgment of acquittal made at the close of the evidence offered by the State is not before us. It was not granted and appellants withdrew it by offering evidence. Rule 755 b. The warrant was executed on 18 August 1969.

Appellants summarized the evidence in their brief. “The evidence in this case is basically uncontradicted. Appellant Cole owned the 3-story dwelling, 2 and had, at one time, occupied a bedroom on the second, or ground, floor. Appellant Wilkins was Cole’s ‘common law 1 wife, and lived in the same house. The third and basement floor of this house were rented to and occupied by other persons, and all of the people living at this address had free access by use of internal stairways to other parts of the house.

During the period from Detective Snow’s surveillance on August 13th through 15th to the actual execution of the ¹²⁵ Search Warrant on August 18th, the Appellant Cole was never seen coming in or going out of the house in question, and was seen near it only once, and on this occasion was on the sidewalk in front. The Appellant Wilkins had been seen in and about the house during the period of the surveillance, and was present on the day of the search of the [second or ground] floor. In addition to Wilkins, however, there were two unknown female and two unknown male Negroes on the [second] floor with her at the time the search was conducted. In addition there were tenants occupying the house in the basement and on the * * * top floor.

Defendant Cole was not present at the time of the search.” Detective Lester R. Rackey of the Prince George’s County Police