Braxton v. State

720 A.2d 27

123 Md. App. 599

Arnold BRAXTON v. STATE of Maryland.

Nos. 1354, 1355, September Term, 1997.

Court of Special Appeals of Maryland.

November 6, 1998.

Eileen A. Canfield (Law Student admitted pursuant to Rule 16) (Stephen E. Harris, Public Defender, Denise Oakes Shaffer and Bradford C. Peabody, Asst. Public Defender, on the brief), Baltimore, for Appellant in No. 1353.

Denise Oakes Shaffer, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant in No. 1355.

Emmet Davitt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Patricia Jessamy, State's Atty. for Baltimore City, on the brief), Baltimore, for Appellee.

Argued before HOLLANDER, BYRNES and ADKINS, JJ.

HOLLANDER, Judge.

On April 30, 1996, Mark Williams and Charles Carroll were robbed in Baltimore City by two men; one robber brandished a.25 caliber handgun and the other wielded a.38 caliber weapon. After the robbers fled the scene, the victims informed a police officer of what had occurred. Later that evening, the police apprehended the robber who had allegedly carried the .38 caliber weapon. Further investigation led the police to suspect that Arnold Braxton, appellant, was the robber who had used the .25 caliber firearm.

Subsequently, Detective Alvin Gwynn obtained Braxton's photograph and included it in a photo array that he displayed to Mr. Williams. After the victim identified appellant as one of the robbers, the detective obtained appellant's address from his arrest record, and then procured a search warrant for that address: Apartment 203, 4310 Seminole Avenue, Baltimore, Maryland. Several officers joined Detective Gwynn in executing the search warrant; the search led to the discovery of a .25 caliber weapon matching the description of one of the guns used in the robbery. Ballistics tests also linked the weapon to the murder of Melvin Alexander, Jr., whose body was found in his car on April 26, 1996. Consequently, appellant was charged with the armed robbery of Mr. Williams and Mr. Carroll, as well as the murder of Mr. Alexander.¹ The legality of the search warrant issued for appellant's residence was a central issue below, as it is here. At a hearing held prior to the murder trial, the court (Alpert, J.) denied appellant's motion to suppress the fruits of the search. Thereafter, at two successive jury trials commencing in July 1997 in the Circuit Court for Baltimore City, appellant was convicted of the first degree murder of Mr. Alexander ("Trial I" or the "murder trial"), the armed robbery of Mr. Williams and Mr. Carroll ("Trial II" or the "robbery trial"), and related offenses.² At a joint sentencing hearing held on September 3, 1997, the court sentenced twenty-one year old Arnold Braxton to a total of life imprisonment plus 20 years.³

Appellant timely noted his appeal in each case. Although these appeals present a host of unrelated questions, we shall consider the appeals together, because they present identical challenges to the search warrant.⁴ Braxton presents the following questions for our consideration, which we have condensed and reformulated:

I. With respect to Trial I and Trial II, did the court err in denying the motion to suppress evidence recovered during the execution of the search warrant issued for appellant's residence?

A. Was the search warrant supported by probable cause?

B. Even if the search warrant was not supported by probable cause, does the good faith exception apply?

C. Was the affidavit tainted due to police misrepresentation regarding the witness's identification in the photo array?

II. In Trial I, did the court err in permitting an expert witness to testify that the gun admitted into evidence met the statutory definition of a handgun under Md.Code (1957, 1996 Repl.Vol.), Art. 27 ž 36B?

III. In Trial I, did the court's erroneous submission to the jury of the attempted carjacking charge improperly influence the jury with respect to the first degree murder charge?

IV. In Trial I, was the evidence sufficient to convict appellant of first degree premeditated murder?

V. In Trial II, did the court improperly deny two unrelated motions for mistrial, each of which concerned objectionable testimony from two police officers?

VI. In Trial II, was the evidence sufficient to support the robbery conviction?

I. THE MOTIONS TO SUPPRESS

A. Factual Summary

With respect to both the murder and robbery trials, appellant moved to suppress the tangible evidence recovered during the search of Braxton's residence, including a .25 caliber handgun recovered from under the pillow of the bed located in appellant's bedroom. At the suppression hearing, appellant contended that the search was not based on probable cause, because the affidavit failed specifically to identify the subject premises as appellant's residence, and it did not indicate how the police knew appellant resided at the particular premises.

As the content of the warrant is critical to our resolution of the probable cause issue, we shall begin by setting forth the text of the affidavit appended to the search warrant application:⁵

Persons/Premises to be Searched:

Arnold Braxton, Jr.⁶ M/B/10-31-75 BPI# 440-492, 4310 Seminole Ave. Apt. A three story brick apartment building with the numbers 4310 affixed. Apt. 203 has a white door the numbers 203 on same.

Property to be Seized:

One mens [sic] leather Nautica Jacket, one Motorola Cellular phone w/ black case, one Pagenet Pager w/ black case and one chrome handgun .25 cal. As well as any other evidence related to the commission of the crime of robbery.

Your Affiant Det. Alvin Gwynn has been a member of the Baltimore Police Department for seven years. During this tenure Your Affiant has worked in both uniformed and plainclothes capacities. Your Affiant has made over fifty arrest [sic] for felony offenses where handguns have been used and has written over fifty search and seizure warrants for various offenses. Your Affiant has received training in the area of robbery through roll call training as well as the Baltimore Area Robbery Conferences.

Your Affiant Does Attest to the following:

On 30 April 1996 Mr. Mark Williams was standing in the 700 block of Kevin Road. While conversing with his friend Mr. Charles Carroll they were approached by two black males who produced handguns and demanded currency. Mr. Williams and Mr. Carroll complied giving the suspects a total of $40.00 currency. The suspects also took a Nautica jacket leather coat, motorola cellular phone and pager from Mr. Carroll. Additionally, the suspects searched the vehicles of both Mr. Carroll and Mr. Williams, during which time Mr. Williams' small children were in his vehicle. The suspects fled the scene on foot with the property. A uniformed officer on patrol was flagged down by Mr. Williams and Mr. Carroll and advised of the robbery which had just occurred. The officer spotted the suspects in the 1000 block of Kevin Rd. A chase ensued and shots were exchanged between one of the suspects and the officer; the officer was injured as a result. After a lengthy standoff the suspect was apprehended and identified as Nathaniel Powell M/B/6-22-78. Further investigation by Your Affiant revealed the name of a possible second suspect in the robbery as Arnold Braxton M/B/10-31-75. A photograph of Mr. Braxton was obtained from the Baltimore City Identification Section and a photo array consisting of six photographs similar in nature was compiled. The photo array was shown to Mr. Mark Williams who positively identified the photograph of Arnold Braxton, BPI# 4440492 as the individual who robbed him on 30 April 1996. A warrant was obtained for Mr. Braxton under warrant number 1B00130712.

It is common for persons who have committed armed robberies to store the fruits of their crimes in the place of their residence as well as the weapons used to commit these offenses. It is for this reason that Your Affiant prays that a search and seizure warrant be issued for the above named persons and premises.

At the suppression hearing, defense counsel argued:

[T]here is nothing whatsoever in the affidavit that states why this particular premises was sought to be searched. There's nothing in there that indicates what the alleged connection is between Mr. Braxton and the premises at 4310 Seminole Avenue.

* * *

I think they have to have something in the affidavit that indicates that this is, in fact, his premises and there's nothing in the affidavit whatsoever to indicate that this is, in fact, Mr. Braxton's premises.

* * *

[I]t doesn't say he lives there, Your Honor. What the affidavit saysÔÇöit doesn't say anywhere that he lives there. What the affidavit says about the premises is precisely this. It says, "Person/premises to be searched: Arnold Braxton, Jr., M/B," male/black, "10/31/75, BPI No. 440-492. 4310 Seminole Avenue, apartment, a three-story brick apartment building with the numbers 4310 affixed. Apartment 203 has a white door with the numbers 203 on same." It doesn't indicate in any wayÔÇö that's the one and only reference in this affidavit to that dwelling, to that address.

* * *

But it does not say anywhere that this residence is, in fact, Mr. Braxton's residence. It doesn't say anywhere that this address is Mr. Braxton's residence, I should say. All it has is that conclusory statement about what people keep at their residences. As I say, the only reference to that address is in the heading where it says "persons to be searched," "places to be seized."

It might be possible to infer from that, maybe, that that address is Mr. Braxton's address since it's under his name and his BPI number. It's also possible to infer from that equallyÔÇöit's equally reasonable to infer from that simply that that is, in fact, the place to be searched and that it doesn't necessarily have any connection with Mr. Braxton since what it saysÔÇöit's under the heading "persons/places to be searched." We have a person, Mr.

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