Thompson v. State

776 A.2d 99

139 Md. App. 501

Tiara Cardell THOMPSON, v. STATE of Maryland.

No. 2021, September Term, 2000.

Court of Special Appeals of Maryland.

July 9, 2001.

Michael R. Braudes, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Devy Patterson Russell, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Jack Johnson, State's Attorney for Prince George's County, Upper Marlboro, on the brief), for appellee.

Submitted before HOLLANDER, KRAUSER and RAYMOND G. THIEME, Jr. (Ret'd, Specially Assigned), JJ.

RAYMOND G. THIEME, Jr., Judge, Retired, Specially Assigned.

Appellant Tiara Cardell Thompson was convicted by a jury in the Circuit Court for Prince George's County of second degree murder and use of a handgun in the commission of a crime of violence. Thompson appeals from his convictions and presents the following questions for our review, which we have rephrased slightly:

1. Did the trial court err in denying appellant's motion to suppress? 2. Did the trial court err in imposing a ten-year term of probation, effective upon completion of appellant's prison sentence?

Facts and Proceedings

On November 11, 1999, Prince George's County police officers executed a search of Thompson's apartment located at 4869 St. Barnabas Road in Temple Hills. The police seized thirty-nine cartridges consistent with bullets recovered from the body of Clifford Bell, who previously had been murdered. The cartridges found in Thompson's bedroom also were consistent with cartridge casings that had been discovered near the location of the shooting. Thompson was subsequently charged with the murder of Bell and of use of a handgun in the commission of a crime of violence.

Appellant moved to suppress the physical evidence found in his apartment on the basis that the State had failed to prove that the search of his apartment was conducted pursuant to a valid warrant. An initial hearing regarding appellant's motion to suppress was held on June 21, 2000. The State was unable to produce the signed warrant upon which the search of appellant's apartment was based. Therefore, the State called to the stand Detective William Wilson, who was the police officer who claimed to have obtained the warrant from the issuing judge. Prior to the testimony by Detective Wilson, the trial judge spoke for purposes of the record regarding what would be State's Exhibit 1:

Madam Clerk, I have—so the record is clear, I have opened the envelope containing a—that has written on it the words, "Search warrant, Judge Robert J. Woods, Detective W. Wilson, ID Number 1634."

* * * * *

In the envelope that I opened in open court pursuant to the standard procedure is a document that has one, two, three, four, five pages. The first page has a title application.

It says, "In the Circuit Court for Prince George's County, in the District Court of Maryland, District Five, Application for Search Warrant." It says, "The affiant hereby makes application to," and there's a line drawn to be filled in but it is not filled in.

Page two is—has no markings other than what's typed on there. Page three has no markings other than what's on there. Page three is entitled at the beginning first page or the only page, first and only page of something called a search warrant, unsigned and undated, except it has the month of November typed in.

* * * * *

The fourth page is the—the third page is the application, but it appears after the search warrant itself, which is unexecuted, at least on this copy. Okay? The fifth page is a return that's blank and has not been filled in or signed by anybody.

State's Exhibit 1 then was introduced. Appellant subsequently objected to any proposed testimony by Detective Wilson, arguing that the officer's testimony violated appellant's constitutional rights. Appellant contended that the State had failed to produce the warrant and therefore the authenticity of the warrant had not been established. The trial judge overruled appellant's objection, but stated: "You can have a continuing objection to his testimony in its entirety on the grounds that it's unconstitutionally received and that it's irrelevant." Subsequently, appellant was also granted "a continuing objection to all physical evidence that was taken as a result of the search in this chase [sic] on the grounds as previously stated."

The following testimony was given by Detective William Wilson:

Q: Do you recall what date that you applied for that warrant?

A: I believe it was November 10th or the 11th. I'm not exactly sure which date it was.

THE COURT: Of what year, sir?

A: Of `99. I'm sorry.

* * * * *

Q: What judge do you recall appearing in front of to have the warrant—the search warrant when you made application?

A: I believe it was Judge Woods.

* * * * *

Q: After you signed it and swore to it in the presence of Judge Woods, what, if anything, did you observe Judge Woods do to the warrant?

A: He signed it.

Appellant's counsel subsequently cross-examined Detective Wilson. The Detective recalled going to Judge Woods's home one evening in order to have the search warrant signed. This dialogue followed:

Q: And who else was with you when you went to his home in the evening?

A: I don't recall if anyone else was with me.

Q: And approximately what time was it in the evening?

A: It was dark outside. I don't recall exactly what time it was, but I know it wasn't past midnight, but it was definitely later in the evening after dinner.

* * * * *

Q: Where does he live?

A: I believe it's in Bowie or Upper Marlboro. I believe his house, if I recall it correctly, sits-I don't recall the street name, but I remember pretty distinctly that there are big power lines that you can see from his home at the end of his street.

Shortly thereafter, appellant's counsel asked Detective Wilson about the execution of the search warrant at appellant's apartment:

A: It was later in the evening. I believe it was on the 11th about 10 or 11 o'clock at night.

* * * * *

Q: And how much—and it was on November the 11th that you presented the search warrant to Judge Woods?

A: I don't recall if it was the 10th or the 11th. I believe it was one of those days, yeah.

Q: Okay. The [murder] in this case is alleged to have happened on November 10th at approximately 3:55; is that correct?

A: Yes.

Q: Okay. And did you go to Judge Woods's home on the day of the incident?

A: I don't believe so, no.

Q: Did you—do you recall if it was the following day or after that?

A: Well, if this occurred on the 10th then I don't believe that [it was] the day that this happened, because we did interviews and were there late. Then it was probably more likely the 11th that it was signed.

Detective Wilson's testimony established that he did not make any copies of the signed warrant, and that he also did not know of anyone else who had made copies. The testimony also provided the following:

Q: Do you have any notes from that time period which verify that you left—that Judge Woods signed the search warrant?

A: No, I don't.

* * * * *

Q: Did you keep records of Judge Woods being the judge who signed the search warrant?

A: No, I did not.

Q: Do you have any records which indicate when and where you took the signed search warrant after the search was executed?

A: No. No, I don't.

Emily Marie Joiner, appellant's mother, also testified at the initial suppression hearing. The police officers who executed the warrant at appellant's apartment had presented her with the warrant and related documents. She testified that she was shown three or four pages, but none of the documents was signed. She then said that the police had retrieved all but one of the documents from her shortly thereafter.¹

The trial court subsequently granted Thompson's motion to suppress because the State had failed to prove by a preponderance of the evidence that the search of appellant's apartment had been conducted pursuant to a valid warrant. The trial judge stated, however, that he would consider a motion for reconsideration of this ruling if the State brought forth new evidence.

Trial began on June 26, 2000. After the jury had been sworn, the trial judge heard motions arguments outside of the presence of the jury. The State requested that the motion to suppress hearing be reopened, announcing that it had additional witnesses to call to the stand: Judge Robert J. Woods, who was the applicable emergency duty judge in November of 1999; Carol Ann Herbert, who was Judge Woods's secretary; and Robert McDaniel, an evidence technician.² After the State made a proffer as to what information would be adduced by these witnesses, the trial court reopened the hearing.

Judge Woods testified by phone from his chambers. He examined a copy of the search warrant that was contained in State's Exhibit 1, which had been presented to him earlier. This colloquy followed:

Q: Do you have any specific recollection of signing that warrant back in November of 1999 when you were emergency duty judge?

A: Those type [sic] of warrants are not unusual, but I have no specific recollection of signing that particular warrant.

Q: If the warrant that you have reviewed had been presented to you, what, if anything, would you have done?

A: If that particular warrant had been presented to me as the duty judge, I would have signed it.

Q: After signing that warrant at home one evening, what would have been your procedure? What would you have done following that?

A: I would probably have taken it into the office the next day. If it was Friday I would have taken it into the office on Monday, and given it to my secretary, Carol Ann.

* * * * *

Q: If you had not signed that warrant when you were presented it by the police officer, would you still have brought a copy in to your secretary?

A: I probably would have, but I would have told her that it was presented, but not signed. I don't recall specifically not signing...