*1 549 an moreover, contained call; resolution error in one words, and an accu- description property accurate in the resolution referenced property rate map Nansemond, annexation Similarly, and attached. to be relation property annexed petition described ratio- on the court’s decision was based monuments. The could “walk that engineer, layman surveyor, nale that a ground certainty.” reasonable line follow on the it distinguish- clearly here are 181 at 622. facts S.E.2d able. BE PAID BY COSTS TO AFFIRMED.
JUDGMENT APPELLANT.
602 A.2d Bernard WIGGINS
v. Maryland. STATE of Term, Sept. 1991. No. Special Appeals Maryland.
Court 2, 1992.
March *5 José Felipé Anderson, Asst. Public Defender E. (Stephen Harris, Defender, brief), Public on Baltimore, for appel- lant. Barbera,
Mary Ellen Asst. Atty. (J. Curran, Gen. Joseph Jr., Atty. Gen., Baltimore, Williams, Jr., and Alexander State’s Atty. George’s Prince County Upper Marl- boro, brief), on the for appellee.
Argued ALPERT, before WENNER, BLOOM and JJ. ALPERT, Judge.
Armed
warrant,
with
search and seizure
police officers
conducted a
apartment
search
an
that appellant, Bernard
Wiggins, shared with two other persons. The introduction
evidence,
into
at the
trial
appellant for murder and other
offenses, of various items that were not
in the
listed
war-
rant and were not satisfactorily shown to have
proper-
been
ly seized under the “plain view” doctrine was one of two
bases for reversal of appellant’s convictions for first degree
murder,
felony
robbery
a deadly weapon, and theft.
(1989).1 At
232,
1. original in search warrant. the listed a key of cross-examination appellant’s 2. it limited When State’s witness. key a State appellant’s questioning prevented
3. When it appellant’s fingerprints of investigator about absence on the victim’s vehicle. error, affirm. we shall
Perceiving no reversible
FACTS Gough Jacquelyn Cooper, and who Juan Demitrus robbery, kidnap- along with the charged, appellant, with apart- of his burglary of the and ping, and murder victim State, which ment, plea agreements into with the entered following The testify against appellant. them to required body of the victim’s are discovery preceding facts testimony. from their derived homosexual, homosexual, and Coo- Gough, a a
Appellant,
District
lesbian,
together
apartment
in an
per, a
lived
murder,
night
Bjorn
In
pub,
of
a
on the
Columbia.
despite
in admit-
convictions
the error
1. This Court had affirmed the
evidence, holding
objects
the error was
ting the
into
that
seized
(1988).
Wiggins
Md.App.
Haug thinking solicited Cooper, she awas male. She suggested he meet appellant. Haug Cooper went with appellant apartment. lover, and their Gough and his Jennifer, Erik were there. Appellant Haug and into went appellant’s Appellant bedroom, bedroom. came out of his and announced to his friends that he intended to “knock Haug, out” “take him somewhere, and leave him and take his car and credit appellant cards.” After returned to his room, crash, there a loud Gough Haug saw in the “knocked Gough, Jennifer, bedroom out” and “bloody.” Cooper Haug, sheet, carried wrapped to his car and him in the put driving trunk. After around for a time in the car, wheel, victim’s appellant thump- they heard ing from the trunk. Appellant pulled over to a vacant lot Prince George’s County and “popped” Haug the trunk. got *7 out of the appellant’s trunk. At urging, Gough and Cooper Haug sticks, beat with did knocking but not succeed in him out. They returned to the Gough appellant car. saw at “swing Haug. Leaving down” on Haug lying the ground, appellant, Gough, and Jennifer went to Cooper, Haug’s apartment and Subsequent- removed several items. ly, lot, was Haug found on a of length pipe embedded his face. He was dead.
After appellant, Gough, Cooper, and Jennifer left body Haug of on lot and went to Haug’s apartment and it, they ransacked took the stolen articles to the apartment shared appellant, Gough, Cooper. morning murder, Haug’s after the telephoned the employer mainte- nance supervisor complex of the Haug’s which apartment was located. Haug work, had not for up shown which was unusual,. highly and the maintenance re- supervisor was quested to Haug’s apartment. check Haug’s apartment was uncharacteristically order, out of police and the notified. Detective Paul assigned Noblitt was to the case as lead investigator. The next day, an officer of the Dis- of trict Metropolitan Columbia Police Department spotted Jennifer driving Haug’s car and arrested him. On the basis of information Jennifer, obtained from of District Co- apart- for the a warrant obtained search officers lumbia on the Gough, Cooper, occupied by appellant, ment it, searched apartment, they entered of which authority suppress motion to Appellant’s certain articles. and seized denied. the evidence man- to the pursuant remanded to it
After the case circuit court conducted Appeals, of the Court date hearing on the thorough, new, evidentiary more and much motion. suppression
I. rever- Appeals’ contends that the Court first Appellant conviction, part because first appellant’s sal of pre-trial motion appellant’s erroneous denial of trial court’s challenges, operated he now the same evidence suppress issue, and there- to this respect case” with as “law of the appel- relitigated not have been fore the issue should second trial.3 lant’s He by appellant. waived believe that issue was
We hearing suppression at the either second argued, never it, sup should the evidence trial that followed on already ruled Appeals had the Court pressed because of Appeals the Court mention made of only that issue. The appellant when hearing the suppression decision was at authority as opinion Wiggins cited that Court’s seize items not right no that an officer has proposition items that the warrant a belief listed in the search absent *8 the case” crime. the “law of fruits of a Because are in principle that issues once decided 3. case refers to the of the "[L]aw stages case are not to be later of the same case that recur a Thus, estoppel prevent just as notions of collateral redetermined. suit, this limits relitigation doctrine of the same issues successive example, single law relitigation stages suit. For of of a in successive by the trial apply in the case is decided case will when an issue on the appealed. appellate reverses and rules If the court court and case, applied those how it affects certain issues law be and binding action remand- findings on the court when the will be trial Miller, Procedure, Friedenthal, & Civil for new trial.” Kane ed a (1985), at 611. 558
argument was not raised at the suppression
hearing
trial, it was not
for
preserved
appellate
Maryland
review.
8-131(a) provides
Rule
“[ojrdinarily,
that
the appellate court
will not decide any ...
issue unless it plainly appears by the
record to have been raised in or decided by the trial
This
is applicable
court----”
Rule
as
criminal
well as
State,
1, 22,
civil cases. Manuel
85 Md.App.
v.
581 A.2d
(1990);
State,
522, 586,
v.
78
Reed
Md.App.
554 A.2d
(1989);
(1947).
v.
189 Md.
Davis
II. Appellant further argues Noblitt’s reasons for seiz- ing the items not listed the warrant were insufficient to support the any conclusion that of the items seized from the apartment were clearly incriminating evidence or contra- band, required as to invoke the “plain view” doctrine. Appellant objected when the items were admitted into evi- dence, citing Amendment, the Fourth referring to Noblitt’s lack of personal knowledge, and asserting that Noblitt was merely speculating that the items had been taken from Haug’s apartment. That issue preserved clearly our review.
The suppression hearing judge announced ruling his as follows:
All right. I find by preponderance of the evidence that this search and seizure of certain items were properly because, one, done prior number that the police had valid justification for the apartment. intrusion in Mr. Wiggins’ Secondly, I heard, find that on based I testimony have that the circumstances show all of the items seized Noblitt, Officer by that the State intends to introduce into evidence, Noblitt, and has been testified to Officer were found inadvertently plain And lastly, view. I find that Officer Noblitt acted in his reasonably conduct execution case, search warrant in this that he was immediately aware of significance
559
of
items,
them to be the fruits
the
and believed
these
denied.
suppress
motion
is
the
Accordingly,
crime.
OF REVIEW
STANDARD
sup
a motion to
whether the denial of
determining
“In
correct,
to the record
appellate
the
court looks
...
press
the record
hearing, and does not consider
of
suppression
658,
State,
521 A.2d
v.
308 Md.
Trusty
trial itself.”
327,
State, 52
332 n.
Md.App.
v.
(1987),quoting
749
Jackson
denied,
(1982).
438,
In
as
to the
they appeared
er
the circumstances
totality
221, 230,
State, 314
550
v.
Md.
seizing officer. Malcolm
(1988).
v.
A.2d 670
As we observed
Parker
1, 8,
(1986):
‘probable viewpoint from the of a but rather vantagepoint library, officer the scene at prudent police and cautious on answered is question time of arrest. circumstances, particular such an in the whether officer information, conditioned his observations police reasonably of his experience, the whole guided by *10 could have believed that items he seized were fruits [the of the crime].’
PROBABLE CAUSE AND THE “PLAIN
VIEW” DOCTRINE is It well settled law that the Fourth Amendment’s “re
quirement
shall
warrants
particularly describe the
things
general
to be seized makes
searches under them
impossible
prevents
seizure
one thing under a
States,
Marron v. United
describing
warrant
another.”
192, 196,
74,
275
76,
U.S.
48
(1927).
S.Ct.
“plain view” doctrine were set forth in
v. New
Coolidge
Hampshire,
443,
2022,
403 U.S.
91 S.Ct.
This
corollary of the
is a
“immediately apparent,”
must
acter
Hicks, 480 U.S.
Arizona v.
requirement.
cause
probable
*11
that
1149,
(1987).
requires
It
L.Ed.2d 347
321, 107
94
S.Ct.
a man of
“warrant
the officer would
facts
the
available
may
certain items
that
caution in the belief
reasonable
of a
as evidence
or useful
property
or stolen
contraband
such a belief be
crime;
showing that
any
it does not demand
non
“practical,
A
true
false.”
likely
correct or more
than
is in
evidence
incriminating
that
technical” probability
Brown, 460 U.S.
730,
Texas v.
required.
is
volved is all that
(1983),
1535, 1543-44,
L.Ed.2d 502
742-43,
75
103 S.Ct.
162,
States, 267 U.S.
132,
45
v. United
quoting Carroll
v. United
Brinegar
(1925),
280, 288,
There activity. evidence of criminal tain that the item seized is 741,103 Brown, at 460 U.S. Supreme As the Court stated at 1543: S.Ct. indicate that Coolidge this Court since by
Decisions likely very phrase “immediately apparent” use of imply taken to of since it can be unhappy an choice words incrimi- as high degree certainty an unduly 562
natory character of evidence is necessary for an applica- “plain tion view” doctrine.
The issue in whether Brown was a balloon seized by the officer should suppressed have been because it could not been “immediately apparent” have police officer that the balloon was In incriminating evidence. view police officer’s testimony that balloons are used commonly narcotics, in packaging he probable had cause to believe the balloon contained an illicit substance. The Su- preme Court further that its stated observation in United Cortez, 411,101 690, States v. 449 U.S. S.Ct. 621 L.Ed.2d (1981),regarding “particularized suspicion,” equally appli- cable to the probable cause requirement. It stated:
The process certainties, does not deal hard but with probabilities. Long before the probabilities law of such, articulated as practical people formulated certain common-sense behavior; conclusions about human jurors as factfinders permitted are to do the same—and are so law enforcement officers. Finally, the evidence thus col- lected weighed must be seen and not in terms of library scholars, analysis by as but understood those versed field law enforcement. Brown, 742, 1543, 460 U.S. at Cortez, 103 S.Ct. at quoting 449 U.S. at S.Ct. 695.
It follows that the subjective
belief
the officer’s
*12
critical,
mind is
DiPasquale
State,
574, 578,
43 Md.App.
v.
(1979),
563 Mere might it be. contraband, suspicion and mere will reach police officer part on the suspicion Hicks, 107 S.Ct. supra, v. cause. Arizona probable level 189, 197, A.2d Wilson, 279 Md. 1153. State v. at See (1977). opinion Wig- Appeals of the Court of are mindful We findings its have considered and we supra, v. gins sup- the items not to seize cause respect probable with those divided first trial. Court appellant’s pressed two into authority of the warrant articles seized without apartment was location in the whose categories: those in the location record, whose and those by revealed The Court the record. by was not disclosed apartment not disclosed location was for those items whose found that those whether record, to determine it was unable by the to those respect With found in view. plain items were record, it was whose location was disclosed articles “immediately apparent” it was to determine whether unable ap- contraband, they since they the officer on their face. be innocent peared listed the warrant In case search judice, sub search: following objects as the property player, a cassette equipment consisting stereo [dual] turntable, cordless player, amplifier, tape reel-to-reel and a two handles bag phone gray nylon zipper execution upon seized reporting property
and the return of the warrant listed: (3) flashlights, shoes, coins, proof military set
tennis viking tele- watches, ring, ship, stamp, brass ashtray, [?] shaver, PLP, lock-set, collection, stamp electric phones, homicide, canvas of victim PG personal papers safe and camera, warrant, coin bag polaroid as (gray) described boots, set, stereo, champagne, tan construction Roma radio, black tape deck tapes, Sony portable cassette bloodstained, of mattress currency, section wallet $120.00 *13 boots. grey articles,
The following seized in apartment, admitted evidence in the case sub at the judice insistence objection State over of appellant: photograph coins, of photograph of Citizen watch and safe, ashtray, papers safe, from inside the stamp stamp, book, collection champagne bottles, Roma photographs of flashlights, handle, two telephones, box, safe pho- watch of tograph Viking ship. ample
There was testimony at the suppression hearing as apartment where the seized items were located. Appellant does not assert that the seized items were not in view,” “plain i.e., within the view of the officers while they were lawfully searching through the apartment items listed in Therefore, the warrant. we shall focus on whether there probable cause to seize the items that were not listed the search warrant.
Faced with question of whether the facts available to Noblitt, Detective as testified to himby at the suppression remand, on hearing warranted in him the belief that those items seized were contraband or stolen property or useful as evidence the crime in the case judice, sub we must first look to the detective's If testimony. necessary, we must then consider the nature of the exhibits themselves to whether, determine under all circumstances, a reason- person possessed able training, the officer’s experience, knowledge, would have reason to believe that those items were probably evidence or fruits crime.
DETECTIVE NOBLITT’S TESTIMONY—THE SEIZED
ITEMS AS EVIDENCE OF CRIME Noblitt testified at the suppression that, hearing before the execution warrant, of the search he had visited Haug’s apartment and made certain observations. He had also Jennifer, interviewed who was involved in the crime and from whom information, he elicited and he had obtained additional information from a friend of the victim. *14 warrant in the items not listed specific reference With his he arrived him, explained Noblitt how seized but crime. fruits of the items were that those conclusion The Coin Sets Detective Haug’s apartment, his During visit collector, it and a coin Haug that was had observed Noblitt from missing silver coin sets were that some apparent was found, in various Haug’s apartment. He in display a shelf sets of the same apartment, silver coin in places appellant’s being “no indication that There Haug collected. type that coins,” Nob collected Detective Cooper Miss Gough Mr. or stolen sets, believing them to have been coin litt seized the distinctive char Because of their Haug’s apartment. from noticed some the fact that Noblitt considering and acter it apartment, from the missing victim’s the sets were they probable cause to believe that he had obvious of the crime. evidence or fruits Military Flashlights The flashlights.” some “military seized Detective Noblitt Air retired from the Force Haug was He was aware that military clothing gear. and apartment in his kept and had apartment. flashlight Haug’s He seen a similar had military “Mr. didn’t Wiggins appear Since connection,” military that the military he believed have a It Haug’s apartment. had taken from flashlights been dealing probabili are should be remembered we that, all fairly given state and not certainties. We can ties his gained investigation, from when knowledge of Noblitt’s seized, more it was with the items otherwise combined to the flashlights belonged likely so than so that 8, 502 Md.App.] at supra victim. See Parker v. [66 A.2d 510. Postage Stamp
The Norwegian bedroom, saw, in a Norwe Wiggins’s The detective he it knew stamp and seized because gian postage (1) (2) victim Norwegian, stamp a collector. Be- it character, cause was distinctive out of place appel- bedroom, lant’s had obviously stronger connection to the victim than to the appellant, there probable cause to seize it. Telephone Second
After seizing the cordless telephone listed in the warrant, seized Noblitt another telephone because he saw *15 the victim’s number telephone on it. Noblitt was familiar the telephone with number because a conversation he friend, had Foster, with victim’s Mr. and Mr. Foster’s mother, Thus, Patricia Alford. there was probable cause to seize the telephone. second
The Roma Champagne Several bottles Roma champagne were seized because, when Noblitt was at Haug’s apartment, he had observed several bottles of that brand of champagne racks, and all but one of the racks was empty. Again, given all of the Noblitt, information available to when considered along with his observation that all but one of the racks was there empty, probable was cause to seize the Roma champagne.
The Safe A friend of the victim had informed Noblitt that Haug had a safe. When Noblitt at arrived the victim’s apartment, observed, he floor, on the safe insulation trailing out door, hammer, to the front a screwdriver, a long tools, other indicating that someone open had tried to pry a Also, safe. Jennifer had indicated that a safe had been taken when he and the others burglarized apartment. Personal papers were inside the safe. Given the fact that Noblitt was armed knowledge that Haug safe, had a no safe was found in his apartment, there was evidence of entry safe, into a suggesting all that a safe had been so not so that safe removed, likely more than it was the crime. room evidence of Wiggins’s was seized The Bloodied Mattress Cover seized because cover was The bloodied mattress had that the victim been indicated to Noblitt Jennifer had more, he struck. Once we when on a mattress lying circumstances, Noblitt viewing totality that hold (The item. evidence is cause to seize that probable had into evidence this item was introduced as to whether clear trial.) at Ship
The Viking
bed,
next
Noblitt
nightstand
Wiggins’s
On a
(see
stamp,
watch
Norwegian
infra),
a
a Citizen
observed
knew,
he
when
ship. He testified that
Viking
and a brass
had
had
born and
Viking ship,
Haug
that
been
he seized the
knowledge
undisputed
That
grown up Norway.
the item
dispute
There was no
that
hearing.
the motions
indeed,
ship. Additionally,
was,
Viking
a model
seized
knew,
Viking
he
he seized the
when
Noblitt testified
items,
nothing
Haug
Norwegian
collected
ship,
a collector.
that he was
apartment
indicated
Wiggins’s
*16
to
cause
Although
probable
of the
quantity
quality
determined with
item is not as substantial as
seize this
mentioned,
we are
to the items hereinbefore
regard
a reasonable
dealing
certainty
beyond
or belief
totality
at the
probability. Again, looking
doubt—but
to
circumstances,
probable
there was
cause
we believe
that the mo
Viking ship. Assuming, arguendo,
seize
admitting
Viking ship,
we believe
erred
judge
tions
a reasonable doubt when
beyond
that error to be harmless
in the
garnered
of the other evidence
investi
considering all
The Citizen Watch friend by Haug’s told Detective Noblitt had been watch, gold in a Citizen Haug recently purchased that had color, with a “thin square face and a brown leather band.” So, when Detective Noblitt was in Wiggins’s room and observed the nightstand, watch on the along with the Nor- wegian stamp and the Viking ship, he obviously made mental connection that it was the victim’s watch. We do not believe that be Again, unreasonable. viewing the totality of the circumstances, and particularly the location watch connection with other items believed belong victim, to the there probable cause to seize that watch. Stamp Albums
Searching for items named warrant, in the Detec tive Noblitt had occasion to look under appellant’s bed. The following colloquy between prosecuting attorney presents detective a clear view as to he had why probable cause to seize what he believed to stamp albums.
Q Why did you look under the bed? A appeared There to be items under the bed. Q All right. Now, of the items that were named in the seized, warrant to be were those items that you believed at the time could have been under the bed?
A Yes, That’s a possibility. ma’am.
Q you When bed, looked under the what, if anything, did you observe you believed at the time of observa- tion to be evidence this case?
A Yes, ma’am. A large stamp collection book. Q At the time you observed the stamp collection book, what led you believe it would be evidence this case?
A Knowing that the victim was also stamp collector. Q The stamp collection observed, book that you you can Court, describe it for the exactly what you observed when you looked under the bed.
A It’s a large blue looseleaf type. notebook Q Were you just able to just by it, tell looking it, without moving that it a stamp collection? Yes, A ma’am. do so? able to
Q you How were see (indicating), and one could thick A It was about this in, plastic covers apparently, envelopes there were that stamp a collection. indicate which would apartment in the defendant’s anything there Q Was stamp indicate that he was a collector? No,
A ma’am. that apartment items the victim’s Q you Had seen collector? stamp that he was a indicated Yes, ma’am, stamp collections. A numerous stamp time that observed Q appear, you Did it at the item? book, expensive an that it was collection looking. A I couldn’t tell from stamp as unusual that a it strike at all Q you Did one’s bed? collection would be under Yes, A ma’am. seeing upon that considered
Q something you that Was it was evidence? it that caused to believe that you Yes, A ma’am. speculation on suspicion
There more than mere an Noblitt; he believed of Detective he saw what part At stamps. collect stamp album in collector would which argue that counsel did hearing, appellant’s the motions albums, appear stamp or could not to be the albums did not this infor- way “there is no that merely he contended that under that were found stamp envelopes mation ... that the to the decedent.” belonged the bed ... Ashtray
The Copper seizing from the record the basis We cannot tell into evi- It is that its admission copper ashtray. obvious it does not tend It is obvious that dence was error. likewise is, therefore, agency criminal appellant’s establish supra. beyond Dorsey, harmless a reasonable doubt. See appears photocopies It from the record but not at the motions exhibits were introduced at trial record, we are advised hearing. Upon examining *18 570
the Clerk’s Office
the Circuit
for
George’s
Court
Prince
of
County disposed
photocopies
all
of the exhibits in this
is arguable
case.
It
that the
of
photocopies
absence
hamper
required
would
our
independent assessment of
First,
probable cause.
we note that the
did
appellant
not
raise this as an issue
regard
to our appellate review
and, therefore,
isit
not preserved. An issue not presented
in the brief need not be considered
us.
by
Logan v. Town
Somerset,
42, 67,
271 Md.
(1974).
Although it would preferable have been for both the trial judge and this court to have the subject photo viewed graphs, we are convinced that their absence is fatal not probable our cause determination.5 When we view the allegedly descriptions insufficient watch stamp against background album the solid of Detective observations, Noblitt’s information and a holding proba of ble cause is irresistible. As we observed Lomax v. 502, 509, 16 454,. Md.App. denied, 298 A.2d cert. 268 Md. (1973): 750 principles
Mathematical and propositions pure of logic maintain that the whole cannot exceed the sum of its parts. law, individual Yet in the whose has not life been logic experience, but a different result often obtains. States, Supreme 5. York, The Court the United v. New Hernandez — U.S.-, 1859, (1991), 111 S.Ct. recognized L.Ed.2d 395 components certain of independent by appel- constitutional review an represent findings late court great of fact of the sort to be accorded appeal, deference on id. Ill S.Ct. at and that "in the absence of circumstances, exceptional appellate [the would court] defer to [the findings, trial findings court’s] factual even when those relate to a constitutional issue.” Id. at 1870. credibility court deferred to the trial court’s Hernandez assess- prosecutor’s ment of the exercising reasons peremptory certain Here, challenges. judge the trial found that Detective Noblitt "was items, immediately significance aware of these and believed them to be fruits of the judge crime.” The trial believed what Noblitt told him. evidence, when or of assembled of information Items a judg- can a basis for provide frequently combination a court reached decision which could ment or disparate consider- compartmentalized, confined solely ation of those items. applicable to Detective Noblitt’s clearly principle
That items to seize the subject cause probable consideration *19 force our review of his decision. with to applies equal and
III. limiting that the trial court erred also asserts Appellant Michelle Jacquelyn of State’s witness his cross-examination a which Cooper plea bargain, made Apparently, Cooper. testimony for her exchange a sentence included lesser on exami- following occurred direct appellant.6 against nation: Now, time en- you did there come a that
[Prosecutor]: concerning a the this plea agreement into with State tered matter: Yes.
[Cooper]: plea terms that And what were the [Prosecutor]: agreement? Do remember? you I pleaded guilty kidnapping, to theft and bur- [Cooper]: sentenced, got it I year cap. a 35 When glary, was years. no give couldn’t me more than they cross-examination, following occurred: On Lamas- you Did have discussions with [Defense Counsel]: could you sentences that ney concerning potential charges? receive these various testimony: judge jury regard Cooper’s 6. The trial cautioned with they thing you testimony that The last I to tell about their is want thing things pleaded guilty same some of with have which Mr. to the pleaded charged, they guilty as a Wiggins have is, promise plea agreement; what a result of we call a they given by things if to them that would be done State certain However, testify you case. are to consider such would in this caution, testimony testimony may have been because that gain leniency by testifying against a Mr. colored desire to Wiggins. [Cooper]: Yes. Do you have a recollection as to what
[Defense Counsel]: Lamasney Miss indicated you concerning what maximum sentence degree was for first murder? Objection. [Prosecutor]: Come up.
[The Court]: Tell why me think you that’s admissible. [The Court]: It’s admissible to show motivation [Defense Counsel]: lie, the maximum facing. sentence she It’s privileged information as to what the sentences were. The conversations that Miss Lamasney had with are her of, the sentences that she was advised and are not confi- dential. overruled,
The objection was and the witness answered told she was she could be if sentenced to life she were convicted of first degree Later, murder. following ensued: Now, what was actual sentence
[Defense Counsel]: that you got?
[Cooper]: Twenty-five years. Was that sentence ever reduced?
[Defense Counsel]: [Cooper]: It was reduced. Objection.
[Prosecutor]: up. Come
[The Court]: Tell me think why you that’s admissible. [The Court]: Again, goes it her motivation to [Defense Counsel]: testify. The that only thing goes to is
[The motivation Court]: what she promised. was She promised cap was a no more than 85 years. It doesn’t make difference she any what got. The objection is sustained.
Appellant argues the trial judge, limiting of Cooper, cross-examination precluded him from dem fully her onstrating prejudice. bias or He asserts that the infor mation regarding extent of Cooper’s sentence reduction could impeached have her credibility provided a motive Therefore, required. he urges, for reversal fabrication. disagree. We v. 320 Md. 577 A.2d
Recently, Smallwood (1990), discussed the issue of Appeals the Court affecting of witnesses for matters bias or cross-examination prohibited question- In that case the trial court prejudice. charges the outcome of earlier ing regarding of a witness the defen- against wherein she had sworn out a warrant attempting prove dant. The defendant was in obtaining had been unsuccessful convictions of witness and, thus, previous the defendant in cases had a motivation as she did in that case. court found testifying error, error and it found that to be harmful.
Unfortunately appellant, for the we are blessed with degree possessed by of information the Smallwood explain. court. We a sentence reduction
Appellant apparently knew about he stated Cooper had received because his brief “On Appellant inquire cross-examination was forbidden about a sentence reduction she had received.” As indicated earli- er, Cooper facing knew that she was a maximum sentence degree of life if of first murder. imprisonment convicted agreement, Under her she sentence plea faced maximum of 35 asked the of her “actual sen- years. length When tence,” Next, she responded, years.” she “25 was asked reduced, responded whether that sentence was ever and she that “It was reduced.” That could be response interpreted (1) in one of two that it had reduced ways: already been (2) from 35 to 25 that it reduced from 25 years years to a lesser term. years posits,
As the State the sentence reduced to 25 years, the trier of fact heard that and it was not testimony, *21 stricken from the Assuming, arguendo, evidence. that a reduced, proffer sentence had been there was no 25-year of the sentence There nothing extent reduction. in the record of whatever this second trial that would lead us to that appellant believe was unaware of the extent of
574 Indeed, Cooper’s sentence reduction. appears converse to If be true. a sentence of 25 years substantially was reduced, then it possibly could have had effect on an Coo- per’s credibility, would although it seem a hypothetical reduction from life to years would be sufficient trier of to form opinion fact an as to Cooper whether coloring her to her testimony “save own skin.” Trial coun- sel neither did proffered that he the extent know of a if reduction, it, he knew years number sentence proffer, was reduced. Without a arewe unable to determine judge’s whether the trial ruling prejudiced Wig- case. See Grandison v. gins’s 685, 742, 305 Md. (1986). A.2d 580 It is noteworthy that defense counsel Cooper never asked whether she against testified the defen- dant, in consideration of Wiggins, her having sentence reduced.
IV. Lastly, appellant argues that the court trial erred in the State’s sustaining objection appellant’s questioning of Noblitt regarding police whether the investigation had dis closed on appellant’s fingerprints vehicle. victim’s subject fingerprints came up first on cross-examination of Noblitt: Is it accurate to there say that
[Defense Counsel]: (sic) fingerprints no of Bernard found in Wiggins decedent’s vehicle at time? any Objection. [Prosecutor]: All right. That’s sustained.
[The Court]: This exchange is one in prosecutor a series which the objected question regarding fingerprints the court objections. sustained the In another exchange, the follow- ing took place: Isn’t it a fact that the fingerprints
[Defense Counsel]: that were identified particular at that location were of Gough Mr. and Mr. Jennifer? Objection, question. and move strike the
[Prosecutor]: *22 sustained. That’s Court]: [The come, Did there ever in your capacity
[Defense Counsel]: lead a time investigator, you any as ever received fingerprints Wiggins information that of Bernard found at Road Brinkley were address? Objection.
[Prosecutor]: That’s sustained. Court]:
[The May approach we the bench? [Defense Counsel]: up. Come on [The Court]: I Could ask the basis?
[Defense Counsel]: the objection you The basis of are outside [The Court]: of the direct examination. scope Well, it, doing we have ways two [Defense Counsel]: him____ and I don’t to You want inconvenience can cross, in my either allow me some latitude or alternative- I ask the to hold him I ly, will Court as a witness so can him in call the defense case. I Fine. The reason am am not objecting
[Prosecutor]: —I I objecting beyond scope. because it’s am really objecting it is—it’s classic Just because hearsay. —which he is the lead investigator, doesn’t mean he can testify everything that occurred this case. what he has Only personal knowledge of. All he has testified to is he took out of what Court]:
[The apartment. understand, I and he is also lead [Defense Counsel]: investigator, part investigator’s of the lead testimony has been— If going she makes an I am objection,
[The Court]: rule.
Defense counsel went on to establish that no fingerprint on analysis performed many the seized items that allegedly belonged to the victim. The State did not object to any following questions: finger- “Was there any print safe?”; done on that “Did do analysis you any finger- on print pages work the various that are contained this book?”; you “And did do on any fingerprint analysis those
items?”; “And there were no fingerprints that belonged the decedent proof sets, found on those they?”; “There fingerprint was no analysis done on any these items that allegedly belonged decedent, to the was there?”. Then there a discussion of The following vehicle. ensued: *23 Now, you did personally examine
[Defense Counsel]: the vehicle that Mr. driving? Jennifer was No sir. [Noblitt]: Who did?
[Defense Counsel]: recall, I sir, As that was Fickling Detective Otis [Noblitt]: of the Prince George’s County Police Evidence Section Who directed Detective Otis Fickling [Defense Counsel]: to examine the vehicle? I did.
[Noblitt]: As lead investigator? [Defense Counsel]: That’s correct. [Noblitt]: Did he report to you any back as to
[Defense Counsel]: information linking vehicle to Mr. Wiggins in terms of fingerprints? recall, no, IAs sir.
[Noblitt]: Then there was a discussion of evidence, other and the last question asked defense counsel the question that elicited the ruling unfavorable of which he complains.
noWhile basis was offered for the objection, it is clear to us that the objection sustained, was properly especially when viewed in context with the trial judge’s previous rulings when the State objected. The question called for hearsay. Noblitt had earlier testified that per- he did not sonally Therefore, examine the vehicle. he could not have testified personal from knowledge whether examination of the car had disclosed or failed to disclose appellant’s finger- prints. BE PAID BY AFFIRMED; TO COSTS
JUDGMENTS THE APPELLANT.
BLOOM, J., dissents.
BLOOM, dissenting. Judge, and at variance agreement appellant
I with myself find commit- In the trial court colleagues. my opinion, my (1) restricting require unduly reversal: ted two errors that (2) prosecution of a witness key cross-examination unlawfully certain seized admitting objects into evidence photographs thereof. appellant’s apartment from I may help A restatement of some of the facts brief on the cross-examination issue. explain my reasoning robbed, murdered, and kidnapped, and Bjorn Haug was Erik Three Jenni- apartment burglarized. people, his fer, they admitted that Gough, Jacquelyn Cooper, Juan *24 crimes; implicated all of them participated had three Gough and apartment who shared an Coo- appellant, committed the per, person planned robbery, as the who murder, in the Jennifer did joined burglary. and with them who, testify against appellant; Gough Cooper, crimes other plea bargains pleaded pursuant guilty murder, as against appellant than testified at this trial well as at the first trial. testi- appellant during
The error asserted occurred by opinion of Ms. The states that mony Cooper. majority exchange included an of Cooper’s plea bargain testimony An against may for a lenient sentence. inference appellant effect, in the nothing be to that but there is possibly drawn it, in the support deficiency record of this case to and that appellant’s complaint. record forms a basis for What the of Ms. brought during Cooper out direct examination State plea agreement, is that there was a under the terms of theft, and pleaded guilty kidnapping, burglary, which she capped years. and her sentence was at 35 On cross-exami- nation, Cooper Ms. testified that she had been informed that the Attorney penalty State’s for first degree mur- der life imprisonment. Not a word was said any about obligation against to testify appellant part as plea bargain; all that the testimony discloses plea about the agreement is that pleas guilty to crimes other than murder for a exchanged sentence cap years.
Continuing his cross-examination of Ms. Cooper, defense counsel established that the actual sentence imposed was 25 years, years ten less than the stipulated maximum. But when defense counsel asked whether that sentence was reduced, ever the State objected the court sustained the time, objection. By that the witness had answered the affirmative, in the question and that answer stood because there nówas motion to strike it. important What is to the issue raised by appellant is the reason given by the court sustaining the objection:
The only thing goes to motivation is what she was promised. She was promised cap no more than 35 years. It doesn’t make any difference she got. what objection is sustained.
Appellant was thus effectively precluded from pursuing reduction, matter of the sentence because the court ruled that evidence pertaining to that matter was irrelevant.
The majority concludes that the witness’s testimony— plea bargain, 35-year cap, sentence, 25-year “It sen- [that was reduced” —can interpreted be in either of two tence] (1) ways: her sentence (2) was reduced from 35 to 25 years; her 25-year sentence was reduced. With all due respect for my colleagues, I submit that Ms. Cooper’s testimony can only interpreted as an acknowledgment that after she received a sentence of 25 years on her guilty pleas to *25 theft, kidnapping, (the and burglary 35-year cap was not a sentence) that 25-year sentence was reduced. By how much? When? Before or after she testified against appel- lant? As a Why? quid for her pro quo testimony? Appel- lant was precluded from asking questions those by ruling court’s the only relevant evidence as to the
579
the 35-
testify against appellant
motive to
witness’s
wrong!
ruling
patently
That
cap.
year
may
questioned
that a witness
It is well established
his
or
credibility,
memory,
knowledge,
any
his
his
regarding
Cox,
v.
173,
Md.
trial retains wide latitude judge examination, harassment, prejudice, based on concerns of issues, safety. of the and the confusion witness’s relevancy, however, not, limit cross-examination may A trial judge re- his “constitutionally the defendant has reached before State, 74 Brown v. threshold quired inquiry.” level (1988). 414, 419, 317 Md.App. 538 A.2d State, 320 Md. v. Smallwood The Appeals, Court (1990), issue of A.2d 356 discussed the recently 577 affecting for matters bias or cross-examination of witnesses prejudice: State, A.2d Franklin v.
In
ever, latitude insofar as the judges and “trial retain wide
580 impose
Confrontation Clause is concerned to
reasonable
about,
limits on such cross-examination
on
based
concerns
harassment,
things,
other
among
prejudice, confusion of
issues, safety,
interrogation
witness’
or
that
relevant____”
repetitive
only marginally
or
A judge must allow a defendant wide latitude
cross-
to
examine a witness as to
or prejudice
bias
... but the
must not
questioning
stray
be allowed to
into collateral
matters which would
the trial
obscure
issues and lead to
confusion____
the factfinder’s
“whether,
An
court must therefore
appellate
determine
assuming that the damaging potential of the cross-exami-
realized,
nation
fully
...
the error
harmless
beyond a reasonable doubt.”
...
error will be
[A]n
if
appellate
harmless
court is “satisfied that there is
no
possibility
reasonable
evidence complained
erroneously
of—whether
admitted or
may
excluded—
have contributed to the rendition of the guilty verdict.”
Id.,
306-308,
(citations omitted).
at
Id.,
420-21,
538
(quoting
A.2d 317
Fletcher v.
Md.App. 349, 359,
(1981)).
What “A please prosecution. in an effort to the testimony formed beneath the conscious cooperate may desire to be level, witness, to the but apparent in a manner not even may a desire to assist the state nevertheless such subtle perception.” cloud the could have concluded easy
It is to see how witness promised to as he had logically testify that his failure conse- might him have adverse expected as was quences.
Id.,
In the case sub heard the witness’s judice, jury the reduced sentence. that she did fact receive a response, against appellant after she testified Inferentially, that was The response first That was not stricken. the trial. connec- explore to the defense to permit court refused that reduction of sentence and witness’s tion between plea It is true that was aware testimony. jury sentence, on the basis of the bargain “cap” 35-year of a but appear that does not to be a motivation “cap” evidence reduction after her The extent of her sentence testify. a for her the reduction was reward testimony, and whether a on bearing relevant and do have certainly are testimony, jury, 35-year of her To the credibility testimony. “cap” would seem to abe consideration for the pleas, guilty not for testimony. majority notes that appellant did not proffer either
the extent of the reduction of Cooper’s sentence or that he did not know extent the reduction. From that it concludes that it cannot tell whether the court’s ruling prejudiced I appellant. fail to see the logic of that conclu- sion. The court had ruled any that reduction the wit- ness’s sentence was In irrelevant. the face of ruling, a proffer as to the extent of the sentence reduction would meaningless. have been
Finally, footnote, in a majority, refers to an instruc- court, tion apparently referring Gough and Coo- per, to the effect they pleaded guilty various crimes as a result of a plea agreement, is, “that promise given by the State to them that certain things would be done if would they testify this case.” The jury was told to consider such testimony with caution might because it *28 colored by gain a desire to leniency by testifying against I appellant. am not persuaded that that instruction cured the error in limiting cross-examination of Cooper. Ms. Af- all, witness, ter as to that the prevented court had jury from hearing evidence of an agreement to testify as a quid pro quo or a leniency reduced sentence. In the absence evidence, such the court’s reference to a plea agreement involving an obligation to did testify appear to apply to Cooper's Ms. testimony. testimony Jacquelyn Cooper and Juan Gough, two
admitted accomplices, was crucial to the prosecution’s case because, as pointed out infra, only their and the testimony, admission of certain tangible items of evidence tending to it, corroborate appellant connected to the crime. Such being case, I persuaded cannot be beyond a reasonable doubt that the court’s in error refusing permit appel- lant’s counsel to explore possible relationship between Ms. Cooper’s testimony and the reduction of her sentence was harmless error.
II opinion sets majority what the absolutely I with agree REVIEW” headings “STANDARD OF forth under THE DOC- AND ‘PLAIN VIEW’ “PROBABLE CAUSE that, of the officer’s agree I also on the basis TRINE.” had as to he suppression hearing at the what testimony he saw appellant’s apartment, what going learned before he believed apartment, in inside the and what plain view seized,1 had he Officer Noblitt he the items when saw which, coin sets one of (only cause to seize the probable bedroom, major in was of appellant’s found on the floor (one flashlights of which was military significance); one bedroom); (only the bottles of wine appellant’s found in bedroom); Nor- in and the appellant’s of which was found I had stamp. agree further that Noblitt wegian postage (the one not telephone cause to seize the “second” probable handle; warrant); safe, contents, and its in the its listed items mattress Since none of those bloody and the cover.2 however, bedroom, presence their appellant’s found in or in com- Gough’s Cooper’s room apartment, areas, accomplices of the guilt mon confirms the admitted corroborating testimony appellant’s their as without that, although I guilt. Finally, agree majority error, copper ashtray admission evidence error, least, was harmless. I to the disagree majority respect
Where with the is with seizure then into of the brass the admission evidence next to Viking ship nightstand appel- that was found on a bed; watch, nightstand lant’s also found on a Citizen *29 album, bedroom; found under appellant’s stamp appellant’s bed. facts, hearing judge
1. These are first level which the found to be true. cover, object testimony but 2. There was some about the mattress evidence, put possibly itself does not seem to have been because parties involved had AIDS. concern that all or some In view of the fact that none of the (or items seized thereof) photographs were exhibited to the suppression motion hearing judge, on, all he had go to just as all we on, go have to respect probable cause, to was the testimony of Officer give Noblitt. We due deference to the judge’s first fact-finding, level which includes his total acceptance of the officer’s testimony as to what information had, saw, he he what and what he believed. do give We deference to the judge’s conclusion, officer’s, or the that what officer knew saw constituted probable cause that he believe what saw was evidence of crime. As to that, as the majority opinion out, points we must make our independent own constitutional assessment.
The Watch Officer Noblitt had told by been a friend of the victim the victim had recently purchased a Citizen watch. The friend watch, described the according Noblitt, as gold color, thin square face, brown leather band. Noblitt described what he on nightstand saw in appellant’s bedroom merely as a Citizen watch. He seized that watch. Considering that Citizen is a very popular brand of wrist- watch, it would not be reasonable for the officer to believe that a watch found in appellant’s bedroom had probably been stolen Haug, from merely because it was made same manufacturer. I that, would concede if the Citizen watch on appellant’s nightstand matched the description of Haug’s watch that the officer had received from Haug’s friend, Noblitt probable cause, would have had rather than mere suspicion speculation, to seize it. Could the hear- ing judge infer or assume if the officer seized the watch it must have matched the description he had been given? we, Can in the exercise of our constitutional duty make an independent cause, assessment of probable make that assumption.3 I do not believe so. The testimony of interesting 3. It is to note that at trial a witness who was familiar with bought shortly watch the victim before he was murdered testified *30 it and seized watch he saw a Citizen that Noblitt Officer from the victim stolen it had been he believed because the seizure was finding a that support to inadequate simply valid. Ship Viking
The
hearing that
suppression
at the
testified
Noblitt
Officer
room,
appellant’s
view,
nightstand
on a
saw, in plain
he
description.
no further
He offered
Viking ship.”
“a brass
Norwegian
Haug was
object because
He seized the
Norwegian.
officer,
and,
Viking equaled
to the
extraction
was never
opinion,
object
majority
to the
Contrary
a
merely as
“brass
Viking ship,
of a
as a model
described
as
either as to size or
not described
It was
Viking ship.”
Norwegian memora-
suggest
that would
other feature
any
or curio
knickknack
distinguished from a brass
as
bilia
Officer Noblitt
Norway.
association with
having no real
he
hearing
any
that
saw
suppression
testify
at the
did
Haug was a collector
apartment
that
Haug’s
indication
Haug
He said that
memorabilia.
Viking or Scandinavian
In
the connection
things.”
my opinion,
“Norwegian
had
Viking ship
of a
shape
in the
object
a brass
between
support
is far too tenuous to
ancestry
Haug’s Norwegian
from
had
stolen
object
been
cause to believe
probable
of crime.
otherwise evidence
or was
Haug’s apartment
Album
Stamp
warrant,
Noblitt,
for items listed
searching
Officer
saw,
he
under
He said that
appellant’s
looked under
bed.
album,
he was
bed,
which he seized because
stamp
a
and there
victim, Haug,
stamps
collected
that the
aware
If it
stamp collector.
appellant
that
was a
was no indication
officer,
he looked under
apparent to the
when
readily
or, as he
stamp
put
a
album
bed,
he saw was
what
interesting to
thought
It is even more
he
it had a metal band.
watch itself or a
was not shown either the seized
note that the witness
identify it.
photograph of it to see if he could
it,
book, I
stamp
agree
collection
would
that he had
if
probable cause to seize it. But
he
object,
had
move
bed,
it out
under
take
from
before he could tell that it
album,
a stamp
the initial
moving
object
seizure—
*31
it
he
tell
examine
before
could
it
a stamp
was
album and
probably
thus
evidence of or fruits of crime—was without
probable cause, and thus
Hicks,
unlawful. Arizona
480
v.
321,
(1987).
U.S.
S.Ct.
It was about this thick [indicating] and we see could that envelopes in, there were plastic apparently, covers which would a stamp indicate collection. cross-examination,
On Noblitt admitted that he had seen nothing like “stamp this collecting apart- book” Haug’s Haug’s (or ment. stamp it) collection what was left consisted of transparent envelopes or folders containing stamps.
I must confess that I know little very stamp about collecting. fifty years Some or more ago, albums stamp which I books, was familiar were bound stamps by gummed were attached to the pages hinges. Perhaps a type transparent loose-leaf book with (plastic cellophane) or or pages, pages into which transparent envelopes or covers inserted, are is modem kind of a album. But stamp loose- containing leaf transparent pages, books type edges which would have been visible Officer Noblitt when he bed, under appellant’s looked are quite used for frequently photograph albums and for collections baseball cards or similar Accepting items. the truth of Noblitt’s testimony and applying to it my independent own constitutional as- under the bed Noblitt saw that what sessment, I conclude containing probably for and suitable binder a loose-leaf Haug collected Knowing that kind. of some collection a from stolen things had been that various stamps suspected well have may very Noblitt Haug’s apartment, I stamp collection. might loose-leaf book the blue that to believe had a reasonable basis that he persuaded am under the bed and it from one until he removed it was suspicion. his verify able therefore, inde- reach, making own my I conclusion had that Officer Noblitt analysis, is cause pendent probable items were following cause believe probable sets, coin because the silver fruits of crime: evidence the sets noticed some of and Noblitt distinctive they were second apartment; from the victim’s missing number, of phone victim’s it bore the telephone, because information; Norwegian independent had which Noblitt *32 character, place out of it was distinctive stamp, because stronger con- bedroom, had a obviously appellant’s cham- the Roma appellant; than to nection to the victim of that same very had a rack Noblitt seen pagne, because with bottles apartment, at the victim’s champagne type had a state- it; safe, Noblitt and the because missing from safe had been in the crime that a from a participant ment apartment in the victim’s and there was evidence taken a safe had been removed. suggested that a bottles and champagne true that may While it be might they in character that not so distinctive telephone are stolen, these are they one to immediately lead believe The facts avail- in a vacuum.4 items should not be viewed him in the belief to warrant were sufficient able Noblitt Haug’s apartment. from items had been stolen that those items, however, of some other seizure warrantless cause to probable on not or not have been based may was of crime: or fruits items evidence that those believe State, supra. 4. See v. Sanford
588 blue, notebook, the loose-leaf which not may have been stamp a readily identifiable as album while it was under the bed; copper ashtray, clearly the which seized upon suspicion, being suggest mere there it nothing crime; or fruit the Viking ship, evidence brass because Norwegian the mere fact that the was of victim extraction rise to might give speculation that the object brass the Viking home, of a been his shape ship had stolen from but probable so; watch, not cause to believe and the Citizen because the mere fact that victim recently acquired had a a particular watch of make furnishes no probable cause to that a watch only believe described as a made by watch same manufacturer had from probably been stolen victim.
HARMLESS ERROR
The fact that I
admitting
believe the court erred in
Viking
album,
ship,
stamp
brass
watch
does not
in itself
a conclusion that the
warrant
convictions should be
reversed because of such error.
error
Only when
results in
prejudice
substantial
to the accused is
required.
reversal
evidence, however,
The improper seizure of
may
taken
If
lightly.
seized evidence has
unconstitutionally
erroneously
merits,
been
received at
trial on the
preju-
dice is presumed. The
will
avoid
State
be able to
reversal
only by satisfying the
appellate court beyond
reasonable
v.
doubt that
Chan
error was harmless.
78
287,
Md.App.
(1989);
589 to the major significance prosecutor’s any items of so, it the case without doing In must view case. the items without of any In the case sub judice,
evidence.
not have
might
the State
appellant’s room
seized from
convictions,
the
because
support
sufficient evidence
was
connecting appellant to the crimes
evidence
only other
in the
alleged accomplices
appellant’s
of
testimony
in detail
crimes,
Cooper,
of whom described
Gough and
both
commission
the crimes.
played in the
of
appellant
the role
CORROBORATION
upon
not
may
A
of
crime
be convicted
accused
person
v.
accomplice.
of an
Brown
testimony
uncorroborated
State,
241,
(1977);
v.
State,
While corroborative need evidence convict, tending facts itself to it must relate material (1) identify perpetrators either the accused with the (2) the accused participation the crime or to show the If some itself. either of these is established with crime accom degree may of fact credit the cogency, trier plice’s even to matters as to which testimony respect State, See, no v. e.g., corroboration adduced. Woods Brown, 591, (1989); A.2d v. supra; Wright 315 Md. 556 236 851, 643,150 733, denied, 361 U.S. State, 219 Md. A.2d cert. (1959). 4 80 L.Ed.2d 90 first factor S.Ct. 486, 459 A.2d
explained Md.App. Samuels v. (1983), we stated: wherein *34 590 respect tending
With evidence “to corroborative iden- crime, the perpetrators defendant with the of the tify ‘[i]t for by way would be sufficient of corroboration the state show, evidence, by non-accomplice appellant that the in the of the the company of crime in perpetrators of general vicinity the the crime scene and at about the ” when the time crime occurred.’ Samuels, supra, Jeandell 492, 213, v. 459 A.2d citing (1976). 366 79 Md.App. A.2d
This case is of example a classic corroboration why The evidence in the case sub required. principal State’s judice testimony was the of admitted in participants two murder, robbery, theft, the burglary, kidnapping, and Coo- per Gough. and Both testified may against appellant have in exchange for lenient in parts sentences their crimes. The State its clearly proving met burden of delicti. corpus It established the fact Haug dead, that his indeed and death occurred under circum- stances that indicated that it was caused criminally by question someone. There is no that the State corroborated the accomplices’ testimony guilt as to their evidence both and found inside outside their apartment. victim’s a body yard was discovered behind building face, a supply company, pipe with lead embedded in his and pipes with bloodied nearby. Photographs Haug’s auto- mobile, Prelude, a 1983 portable Honda radio recovered automobile, Haug’s from gray gloves work identified alleged accomplices having as been by appel- worn murder, lant on the night of into admitted evi- dence.
Clearly, there was no evidence that met the first corrobo- factor, tending rative evidence to identify appellant with the crimes; perpetrators admitted of the there was no non- accomplice placing evidence appellant company Gough at or Cooper about the time commit- they were ting any of the crimes. factor, i.e.,
To establish the second corroborative to show appellant’s itself, crime participation the State We apartment. inside appellant’s evidence found presented items, constituting with those concerned primarily should of Haug, after murder burglary committed fruits room, those items because appellant’s were found *35 The items him with the crime itself. tend to connect would rooms, in areas common to Gough’s or Cooper’s found tenants, however, corroborate certainly would all three in the crimes as to own testimony participation their their involvement. appellant’s corroborate directly would not but appellant’s flashlights, seized from the items Of room— watch, Norwegian stamp, stamp collection copper ashtray, set, and brass bottle, coin book, bicentennial champagne listed the search war- Viking none of ship, which probable had cause to concede that Noblitt rant —I would set, the cham- the coin and stamp, the bicentennial seize sufficient to Those items were themselves bottle. pagne and thus to corroborate connect with the crimes appellant Nevertheless, I not per- am testimony. accomplices’ a jury would have reasonable doubt beyond suaded items, him on the of those without other convicted basis might have been able Appellant in his room. exhibits found presence one of plausible explanation to offer a many one of stolen champagne, several bottles of stolen in his sets, foreign stamp one bed- coin bicentennial value, items, might have appreciable room. These of no their suc- given him the admitted criminals after been item Haug’s Each added apartment. cessful raid on plausible. less explanation Hard- any attempted list makes stamp presence album explain est to would be Believing that there some reasonable under the bed. watch, Viking ship, that introduction possibility appellant’s de- stamp may prejudiced album have fense, introduction of persuaded I am not that error items was harmless. those above, forth I would reverse the
For the reasons set for a trial. and remand this case new convictions