author: Thompson, J.,

text:
    PETER SUTRO WAINE a/k/a Charles F. Adams v. STATE OF MARYLAND
    [No. 1106,
    September Term, 1976.]

      Decided September 9, 1977.

      The cause was argued before Morton, Thompson and Liss, JJ.

      Harold Buchman, Assigned Public Defender, with whom was Barbara Mello, Assigned Public Defender, on the brief, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis B. Burch, A ttomey General, Edwin H. W. Harlan, Jr., State’s Attorney for Harford County, Peter C. Cobb, Assistant State’s Attorney for Harford County, and Gerald Comen, Assistant State’s Attorney for Harford County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

The appellant, Peter Sutro Waine, was convicted by a jury in the Circuit Court for Harford County, Judge Albert P. Close presiding, of two counts of first degree murder and larceny of an automobile. He was sentenced to two consecutive terms of life imprisonment and one consecutive term of fourteen years. On this appeal the following questions are raised:

“1. Did the trial court abuse its discretion in denying appellant’s suggestion of removal based on prejudicial pretrial publicity?
“2. Should the court have ordered suppression of the fruits of a series of searches and seizures on the ground that the warrants authorizing them were issued on the basis of affidavits of probable cause derived from an illegal inventory search?
“3. Did the court err in permitting the introduction, in the State’s case in chief, of testimony concerning prior misconduct of the defendant, which did not result in a criminal conviction?
“4. Did the court err in refusing to permit a psychiatrist called by the defense to testify concerning the unlikelihood of appellant’s committing an act of violence?
“5. Was the evidence sufficient to justify submitting the larceny count to the jury?”

On March 24, 1975, the appellant was arrested in Douglas, Cochise County, Arizona, when it was determined there was an outstanding warrant against him in Maricopa County, Arizona. It was subsequently learned additional warrants were outstanding in Massachusetts. The automobile in w'hich the appellant was stopped was registered in Maryland to Marilyn Smith. The Maryland police were called and requested to investigate whether the appellant was driving the automobile with the permission of the owner. Several pieces of identification and false identification were seized, and a statement was taken by the Cochise County Police. On March 31, 1975, the appellant was transported to Maricopa County, Arizona.

The bodies of Lyle W. Ager and Marilyn Smith were discovered on April 14, 1975, in their house in Abingdon, Maryland, bludgeoned to death by numerous blows with a blunt instrument. The police made this discovery after receiving information from a passing cyclist that the passerby thought he had observed Miss Smith’s body through the window of the house. It was learned that the victims were last seen in the presence of the appellant and had been dead for a considerable time. A warrant was obtained for the appellant’s arrest. The next day, the Maryland State Police contacted the Maricopa County, Arizona Sheriffs Department. The Sheriffs Department in Cochise County, Arizona was also contacted and informed of the homicide investigation that was in progress.

The appellant testified that he had visited the victims in early March, 1975. He denied any knowledge of the homicides and stated that he had been given permission by the victims to use the automobile. He described himself as a “total passivist” who was incapable of violence. The appellant’s brother and a psychiatrist were called to the stand to confirm the appellant’s testimony.

Additional facts will be supplied in the discussions of the several contentions.

I. Removal

Prior to trial the appellant filed a suggestion for removal based on prejudicial pretrial publicity. In support of this he introduced numerous newspaper articles from the local papers as well as an article from The Sun, a Baltimore newspaper. These articles appeared in the newspapers substantially within a three month period. Arguments on the suggestion for removal were first heard more than five months after the final article had appeared. The trial judge found that there had been very little publicity in the seven months prior to trial. He denied the suggestion for removal but agreed to pursue the matter on voir dire examination.

Five panels of prospective jurors were examined on voir dire both as a group and individually. As a group the jurors were asked the standard questions such as whether they had ever had any contact with the appellant, his family, or any of the State’s witnesses, and whether that would in any way affect the juror’s ability to render a fair and impartial verdict. Those jurors who were not excused during this questioning were then examined individually. Each juror was asked if he had formed an opinion. Each juror was also asked if he had “any knowledge of the facts and circumstances of the case, either through word of mouth or by newspaper, radio, or television.” Defense counsel was then allowed to examine the individual juror. When it was discovered that at least one juror had read an article which appeared in the Baltimore News American after the trial had commenced, additional voir dire was granted and the jurors were instructed not to read the newspaper accounts of the trial.

While at least two-thirds of the five panels of prospective jurors stated that they had heard of the case in the news media prior to the voir dire examination, the majority of these stated that their exposure was limited to an article or two many months prior which had simply stated that the crime had occurred. Any juror who revealed that that exposure might impair his ability to render a fair and impartial verdict was excused for cause. More than thirty jurors stated that they had no knowledge of the crime prior to their appearance in the courtroom.

Appellant cites Sheppard v. Maxwell, 384 U. S. 333, 86 S. Ct. 1507, 16 L.Ed.2d 600 (1966), for the proposition that intense local interest, because of the sensational nature of the case, coupled with the large number of prospective jurors who had seen some newspaper article dealing with the case add up to more than a “reasonable likelihood” that the jury selection process in this case was contaminated. In Sheppard five volumes of Cleveland newspaper clippings were introduced into evidence, many of which demanded a conviction. Television and radio stations were permitted to set up broadcasting facilities inside and outside of the courthouse to give a “blow by blow” description during the proceedings. All except one juror testified at voir dire to having gained prior knowledge of the case from the news media. Every prospective juror received anonymous calls and letters as well as calls from friends regarding the impending prosecution. Inasmuch as the facts of this case do not show the “inherently prejudicial publicity which saturated the community” which was evident in Sheppard, supra, 384 U. S. at 363, 86 S. Ct. at 1522, we reject the appellant’s argument that Sheppard controls the instant case.

The question of whether a criminal case should be removed to another jurisdiction is one which rests within the trial court’s discretion. Maryland Constitution, Article IV, § 8; Maryland Rules 542 a 1 and 738 b. The burden is on the appellant to show that he had been prejudiced by adverse publicity and that the voir dire examination of the prospective jurors, available to him, would not be adequate to assure him a fair and impartial trial. Sizemore v. State, 5 Md. App. 507, 511, 248 A. 2d 417 (1968); Mason v. State, 12 Md. App. 655, 678, 280 A. 2d 753 (1971), cert. denied, 263 Md. 717. As a general rule to meet this burden the appellant must show: “(1) that the newspaper article is prejudicial (2) that a juror has read the prejudicial newspaper article, and (3) that the jurors’ decision at the trial was influenced by that newspaper article.” Barber v. State, 16 Md. App. 235, 239, 295 A. 2d 814 (1972), quoting Presley v. State, 224 Md. 550, 555, 168 A. 2d 510, cert. denied, 368 U. S. 957, 82 S. Ct. 399, 7 L.Ed.2d 389.

Newspaper disclosures including factual reports on the capture of an accused are not in themselves prejudicial. Sizemore v. State, supra at 511; Bremer v. State, 18 Md. App. 291, 307 A. 2d 503 (1973), cert. denied, 269 Md. 755, U.S. cert. denied, 415 U. S. 930. Appellant points to several articles which erroneously stated specific other crimes of which the appellant was accused. Even if we assume that this may be prejudicial under certain circumstances, it would not be prejudicial, where as here, there was no showing that any of the jurors read these articles. Defense counsel thoroughly examined the potential jurors to determine what they had read, and no juror revealed an awareness of other charges. Indeed, a jury was available to the appellant which had no prior knowledge of any charges.

Where there was a lengthy hiatus between the majority of the newspaper reports and the trial, we cannot assume that an unbiased trier of fact cannot be found. See Gibson, Tate & Austin v. State, 17 Md. App. 246, 259, 300 A. 2d 692 (1973). If, as in Sheppard v. Maxwell, supra, publicity is so massive and widespread that it is clearly prejudicial, voir dire examination may not always provide sufficient protection, but where as here, the publicity was sporadic, not inherently prejudicial and preceded the trial by several months, a trial court does not abuse its discretion by relying on voir dire to ascertain prejudice. Kable v. State, 17 Md. App. 16, 30, 299 A. 2d 493 (1973), cert. denied, 268 Md. 750. From the record we find no abuse of discretion on the part of the trial judge.

II. Search and Seizure

After the jury had been sworn, the appellant moved to suppress any evidence seized pursuant to several warrants because of a prior taint. A hearing was held out of the presence of the jury. The trial judge determined that the probable cause on which the warrants were issued was not derived in an illegal manner requiring suppression of the evidence. The appellant alleges that the trial judge erred in this ruling.

At the hearing on the motion to suppress, extensive testimony was taken concerning the facts surrounding the appellant’s arrest and the examination of his effects.

The testimony showed that at the time the appellant was arrested he was a houseguest of Mr. and Mrs. Louis Leidman, residents of Douglas, Arizona. Mr. Leidman and a Mr. George Steele were passengers in the automobile driven by the appellant when it was stopped by Sgt. Furr and Det. Vasquez, of the Douglas Police Department. The appellant was shown and allowed to read a teletype message stating that charges were pending against him in Maricopa County, and for that reason he was placed under arrest. Sgt. Furr drove the appellant to the police station, while Det. Vasquez drove the automobile to the impounding lot, where he parked and secured it. The appellant testified that after he was placed under arrest, he asked Leidman to hold his belongings for him.

When Detective Vasquez returned to the police station, he was informed that Leidman had telephoned the station and requested that an officer come to his home and pick up the appellant’s property, because he wanted nothing more to do with the appellant. The detective informed the appellant of this and was told something to the effect of, “Go ahead. Thanks.” Detective Vasquez and a Detective Dabovich then proceeded to the Leidman home. Upon their arrival, they were shown to the bedroom in which the appellant had been staying and were asked to get the baggage that was at the foot of the bed and the property in the closet and in the dresser drawers out of the house. Mr. Leidman testified that he was so upset at the appellant that if the police had not been involved, he would have simply thrown the appellant’s belongings in the street. Several of the suit cases were open so the contents of the drawers and closet were either placed in those cases or in a green plastic garbage bag.

The appellant was allowed to call the Leidman home after he had been processed at the station. He again asked Mr. Leidman to hold his belongings for him, but was informed that they had already been removed by the police.

The officers returned to the Douglas Police Station with the appellant’s personal effects and placed them in an office. Detective Vasquez testified that they then proceeded to inventory the items in accordance with departmental regulations. The purpose of this was to secure valuables. Inasmuch as valuables were all that they were looking for, they are all that were listed. He had been informed by his lieutenant and the Leidmans that the appellant had been using different names while in Douglas. Also, the teletype printout had mentioned prior crimes involving deceit. For these reasons, he was also looking for identification cards of other individuals during the inventory search. The identification cards that were uncovered were separately packaged from the other items. These included three military service records of the appellant, an Aberdeen National Bank Book, two library cards, a video club card, a GEICO identification card, and a Smithsonian Associates membership card all in the name of Lyle Ager. Checkbooks in the names of Pike and Baldwin were also observed. The property was then secured, but no copy of the inventory was given to the appellant.

On March 31, 1975, the appellant was transferred to Maricopa County, Arizona. Five of the seven pieces of luggage were inventoried by that police department on April 1, 1975. On April 15, 1975, Detective David Paul of the Maricopa County Sheriffs Department received a call from Trooper Larry Howard of thé Maryland State Police, advising him that Maryland was investigating a homicide and that the appellant was a suspect. Trooper Howard also inquired as to whether certain specific items of evidence were in the possession of the Maricopa County Sheriffs Department. Detective Paul proceeded to the property room to check the invoices and noticed that two of the suitcases were unopened and uninventoried. In order to protect the police department, he inventoried these two bags at that time. He testified that he may have looked at one other bag. He had no knowledge of an inventory search conducted by the Douglas Police.

On May 6, 1975, Detective Paul was informed that an orange burlap bag containing camera equipment had been discovered in the trunk of the police car which had transported the appellant from Douglas. He inventoried this bag and discovered camera equipment, rolls of exposed film, rolls of unexposed film, and an instamatic camera showing that ten pictures had been taken. This roll was developed in order to determine the owner of the bag. The film revealed pictures of both victims.

The appellant commences his challenge to the trial court’s refusal to suppress the evidence by stating, “Assuming — which appellant does not — that the Douglas police were lawfully in possession of his property, the . .. item-by-item search far exceeded the permissible scope of bona fide ‘inventory.’ ” Contrary to Md. Rule 1031 c 5, no argument has been offered in support of the threshold question whether the police were in lawful possession of the appellant’s effects. We shall treat the issue just as concisely by noting that there is evidence on the record which shows that the appellant consented to the police acquisition of the luggage. The police procedure seemed on its face entirely reasonable under the circumstances. For these reasons, it is unnecessary for us to analyze and analogize this procedure. See Cady v. Dombrowski, 413 U. S. 433, 93 S. Ct. 2523, 37 L.Ed.2d 706 (1973), and Duncan and Smith v. State, 34 Md. App. 267, 366 A. 2d 1058 (1976), cert. granted April 5, 1977, dealing with the community caretaking function of police with respect to automobiles; United States v. Blackburn, 389 F. 2d 93 (6th Cir. 1968); United States v. Lipscomb, 435 F. 2d 795 (5th Cir. 1970).

Mere legal custody of the appellant’s effects, however, does not dispense with constitutional requirements of searches thereafter made. Cooper v. California, 386 U. S. 58, 61, 87 S. Ct. 788, 17 L.Ed.2d 730 (1967); United States v. Chadwick, 433 U. S. 1, 97 S. Ct. 2476, 53 L.Ed.2d 538 (1977). Unless the warrantless search falls within one of the recognized exceptions to the warrant requirement, it is per se unreasonable. Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971).

The warrantless search of suitcases and luggage has been justified both as a search incident to a lawful arrest under the principles expressed in Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L.Ed.2d 685 (1969), and as an “automobile exception” under Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). Waugh v. State, 20 Md. App. 682, 318 A. 2d 204 (1974), rev’d on other grounds 275 Md. 22, 338 A. 2d 268 (1975). The search in this case, however, was not “essentially contemporaneous” with the arrest to satisfy the unity of time, Preston v. United States, 376 U. S. 364, 84 S. Ct. 881, 11 L.Ed.2d 777 (1964) or within the permitted search perimeter, Chimel, supra, requirements which are necessary for a legitimate search incident to lawful arrest. See Dixon v. State, 23 Md. App. 19, 26, 327 A. 2d 516 (1974). Once the luggage had been seized by the police and transported to the police station there were no exigent circumstances existing that evidence might be removed or destroyed before a search warrant could be obtained to qualify for the Carroll doctrine. See Chadwick, swpra. Furthermore, for a search to be lawful under either of these exceptions the police must have had probable cause to have made the search. Waugh v. State, 275 Md. 22, 28, 338 A. 2d 268 (1975). The State does not contend that probable cause existed prior to the obtaining of the warrants. The only exception applicable, therefore, to the instant case would be the so called “inventory search.” South Dakota v. Opperman, 428 U. S. 364, 96 S. Ct. 3092, 49 L.Ed.2d 1000 (1976).

In South Dakota v. Opperman, supra, the Supreme Court dealt with inventory searches of automobiles. Three purposes which serve to legitimatize warrantless police intrusions into the interior of an automobile following its seizure were listed: (1) protection of the police from danger; (2) protection of the police against claims and disputes over lost or stolen property; and (3) protection of the owner’s property while it remains in police custody. Inventory searches, therefore, are not conducted in order to discover evidence of crime. They are conducted in accordance with police departmental policy to list what is in police custody. Probable cause to seek a search warrant would be irrelevant. Id. 428 U. S. at 370, n. 5, 96 S. Ct. at 3097, n. 5 (1976). See also Mackall v. State, 7 Md. App. 246, 255 A. 2d 98 (1969); Kleinbart v. State, 2 Md. App. 183, 234 A. 2d 288 (1967); St. Clair v. State, 1 Md. App. 605, 232 A. 2d 565 (1967).

In United States v. Chadwick, supra, the Supreme Court distinguished between automobiles and luggage when dealing with a search incident and automobile exception to the warrant requirement. While it did not expressly deal with inventory searches, we are obligated to re-examine the purposes for this type of search when dealing with luggage. We see no reason why in an appropriate case an inventory search would not be as applicable to luggage as to automobiles, if the reasons for the station house inventory are as valid as the justifications for an automobile inventory. As pointed out by Justice Blackmun in his dissent:

“It is also possible that today’s decision will not have much impact because other doctrines often will be available to sustain warrantless searches of objects in police custody. As the Court acknowledges, ante, at 15 n.9, no warrant is necessary when the authorities suspect the object they have impounded has dangerous contents. Moreover, police may establish a routine procedure of inventorying the contents of any container taken into custody, for reasons of security and property conservation. Cf. South Dakota v. Opperman, 428 U.S. 364 (1976).” Id. at 21.

Unlike an automobile which usually is placed in a lot protected only by a fence and subject to vandals, the luggage was placed in a storage room in the station secured by lock and key. The main concern of the police, therefore, would be to establish an accurate list to protect them from false claims. The procedure employed by the police in this case provided minimum relief from this type of claim, particularly as a copy of the inventory was not furnished to the appellant. It does not appear that the police had reason to believe that the luggage contained some immediately dangerous instrumentality, such as an explosive. See Chadwick, supra at 433 U. S. 15, n.9, 97 S. Ct. 2485 n.9. If this had been the case, they would have searched the luggage before transporting it to the station house. While the basis for the inventory search, under these circumstances, seems slightly more than marginal, those occasional dangers which do exist cannot be entirely discounted. South Dakota v. Opperman, supra, 96 S. Ct. at 3101 (Powell, J. concurring). The harmful consequences in those rare cases where there is injury to either person or property could, perhaps, justify this intrusion. We agree with Justice Blackmun that the police may, under the appropriate circumstances, establish a routine procedure for inventorying the contents of any container lawfully seized.

In Dixon v. State, supra at 40, this Court quoted from 48 A.L.R.3d 537, 544:

“ ‘An essential requirement to a valid inventory search is that the police must have acted in good faith in conducting the inventory, and must not have used the inventory procedure as a subterfuge for a warrantless search. It has therefore been held that where the conduct of the police was inconsistent with its contention that the search was conducted for inventory purposes, the search was unlawful.’ ”

As pointed out by Justice Powell in his concurring opinion in South Dakota v. Opperman, supra 96 S. Ct. at 3102, the upholding of inventory searches does not provide a general license for the police to examine all the contents of the container. The police’ are not justified in sifting through papers secured under the procedure employed here. See also Opperman, supra 96 S. Ct. at 3106 n. 6 (Marshall, J. dissenting). Compare Mackall v. State, supra at 251, where the inventory of the contents of a suitcase in the trunk of an automobile was found to be a bona fide attempt to safeguard the owner’s property and Kleinbart v. State, supra at 199 where the search of a suitcase in the trunk of an automobile was found inconsistent with protective custody. Whether an inventory search was justified must depend on the facts of the individual search.

In the case at bar, it is obvious that the Douglas, Arizona police were doing more than simply listing valuables when the initial inventory was made. There was testimony that the officers searched through and read the appellant’s papers. It was certainly not necessary to read the papers in order to note that they were in the luggage. Detective Vasquez testified that he had been informed that the appellant had been using various identities. While he had never before inventoried business cards, he separated them in this instance because they may have been evidence. It is clear to us, therefore, in our independent judgment of the facts, Walker v. State, 12 Md. App. 684, 694-695, 280 A. 2d 260 (1971), that the officers went beyond the scope of a reasonable inventory search and their conduct amounted to an unreasonable search.

Similarly, we find that the inventory search in Maricopa County on April 15, went beyond the appropriate boundaries. Detective Paul testified that during this inventory, he looked at numerous slides. His reason for this was “curiosity.” This invasion of the appellant’s privacy is not within the reasonable limits of safeguarding property and person, and thus supports the proposition that a search was being conducted.

On the other hand, we find that the inventory of the orange burlap bag on May 6, 1975, was reasonable. Even though the officer developed previously undeveloped film, testimony reveals that this was done to assist him in determining the owner. Unlike the other situations, this was not an unjustifiable pretext to invade the appellant’s privacy because, although the bag was found in the police vehicle which several weeks earlier had transported the appellant, the bag could have belonged to someone else.

Appellant urges that as the searches were illegal, any evidence derived therefrom must be suppressed. Although nothing was seized during these intrusions, the doctrine of the “fruit of the poisonous tree” extends the scope of the exclusionary rule to bar not only evidence directly seized, but also evidence indirectly obtained as a result of information learned or leads obtained in the unlawful search. Everhart v. State, 274 Md. 459, 481, 482, 337 A. 2d 100 (1975).

We find that all the evidence seized came from an independent origin and the unlawful searches did not directly or indirectly lead to the discovery of the evidence.

(a) Warrant dated March 26, 1975

Detective Lauren Paulson of the Douglas Police Department testified that shortly after coming on duty on March 25, 1975, he received a telephone call from the city mechanic informing him that while servicing one of the police cars, the mechanic had found several credit cards and a driver’s license under the back seat. These cards turned out to be two gasoline credit cards in the name of Henry H. Pike and a Bank Americard and Maryland driver’s license in Lyle Ager’s name. Through subsequent investigation, Detective Paulson discovered that the appellant had used the Bank Americard and one gasoline credit card during his stay in Douglas. A statement was taken from the appellant in which he admitted the theft and illegal use of checks and credit cards belonging to numerous individuals. During this statement, Paulson removed from the appellant’s wallet, a Brooks Brothers credit card in the name of William Perry Baldwin and a slip of paper with Lyle Ager’s name on it and listing the names, addresses and telephone numbers of persons to be notified in the case of an accident.

On March 26, 1975, Paulson contacted the Massachusetts Police and was informed that there were four counts on an embezzlement charge against the appellant in that jurisdiction for passing bad checks drawn on the Old Brass and Copper Shop and stolen from the owner of the shop, a Mr. Marcus. A short while later, the detective received a call from Marcus and learned that the appellant had been an employee of Marcus until he charged various items on Marcus’ account at a clothes store and left town. Checks drawn on the Old Brass and Copper Shop were being received from all over the country.

After this phone call, Paulson applied for and received a search warrant authorizing him to search the appellant’s property for stolen credit cards, sales slips from stolen credit cards, stolen checkbook and checks, stolen camera equipment, and any other items which may be stolen. In his affidavit, the officer presented the information he had received from the two Massachusetts phone calls. Seized as a result of this search, among other things, were a checkbook and a bankbook in the name of Lyle Ager, a check of the Old Brass and Copper Shop, motel keys and receipts, and checks in the name of Henry H. Pike and William P. Baldwin. These items were retained in the Douglas Police Station vault until they were turned over to the Maryland State Police.

It is true that under certain circumstances an inquiry as to the legality of the source of the data set forth in an affidavit in application for a search warrant is permitted. Carter v. State, 274 Md. 411, 337 A. 2d 415 (1975). In this case, however, there is no evidence on the record that Detective Paulson’s application was derived from the original inventory. There was testimony that he was aware an inventory had been made, but this cannot be construed to taint the application. Contrary to appellant’s allegations, the affidavit supporting this warrant contained no information that resulted from the inventory search. The warrant is not otherwise attacked and, thus, we find it valid.

(b) Warrant dated April 18,1975

On April 18, 1975, Detective Paul applied for and received a search warrant authorizing him to search the appellant’s property for a shoe with what appeared to be blood on the side, various photos and slides of the victims, and “any instrument or instrumentality used in the commission of the homicide.” In support of his affidavit, Detective Paul recited the information which had been conveyed to him by Trooper Howard including the fact that the appellant had been arrested in Douglas, Arizona while driving Marilyn Smith’s automobile and carrying certain effects of Lyle Ager. In addition, Trooper Howard’s investigation revealed that certain photographic equipment of the victims was missing. The affiant stated that when he made his inventory of the appellant’s effects, certain pictures and a shoe, with what was believed to be blood on it, were observed. By the time of the actual search, Troopers Howard and Moore had arrived from Maryland and assisted in the execution. Three receipts from Brooks Brothers, a military service record, numerous keys, a letter, photographs, two wallets, and a bead were seized. All the items which were seized but not named in the warrant were in plain view. These items were connected to the victims, their house, or car by Trooper Moore, except for the Brooks Brothers receipts which were seized as evidence of the stolen credit card of William Perry Baldwin.

Evidence observed from the inventory search should not have been considered, but this does not necessarily invalidate the warrant. “If an affidavit for a search and seizure warrant contains improper information which should not be considered by the court [in issuing the warrant] the court is nonetheless justified in issuing the warrant if additionally the affidavit contains within it sufficient proper information to show the existence of probable cause.” Carter v. State, supra at 442; Tucker v. State, 244 Md. 488, 224 A. 2d 111 (1966), cert. denied, 386 U. S. 1024 (1967). The bulk of the affidavit on this date is based upon information supplied by Trooper Howard. From this information it was alleged that the appellant was a suspect in a homicide investigation and when he was apprehended, he had personal belongings of the victims in his possession. It was also alleged that photography equipment formerly belonging to one of the victims was missing. From this information there was sufficient probable cause to seize anything connected with photography or with blood on it. Even if these items had not been named in the warrant, there would have been probable cause to seize them once they were in plain view. We have no difficulty in finding that ample probable cause was established, independent of the prior inventory searches, and the mention of the results^ of these searches in the affidavit was only surplusage. As this warrant is also not otherwise attacked on appeal, we find it valid.

(c) Warrant dated May 8, 1975

The warrant issued on May 8, 1975, was based in part on the May 6 search of the orange bag which had been inadvertently left in the police vehicle which transported the appellant from Douglas, Arizona to Maricopa County, Arizona. As recited above, we have found this search to be valid. As the warrant is not otherwise attacked on appeal, we find it valid.

(d) Other Warrants

Although other warrants are referred to in the briefs, their validity was not presented to or decided by the trial judge. It is not clear from the briefs as to whether or not there are questions raised as to the other warrants, but if such questions are raised, we will decline to decide them under Md. Rule 1085.

III. Prior Criminal Acts

Appellant’s third contention is that the trial court erred in permitting the State to introduce testimony concerning prior criminal acts of the appellant.

Prior to opening arguments, the defense moved for an order prohibiting the State from introducing evidence or testimony pertaining to prior offenses committed by the appellant. The motion also pertained to those portions of his confession which referred to various confidence schemes. During argument on the motion, counsel for the appellant stated:

“Frankly, I think the jury and in the course of the trial, during the course of the trial he would have to and it would be revealed only through the Defendant’s testimony, that of these convictions that he has been found guilty of, passing bad checks on the two occasions and embezzlement and all of this type of thing. The point is going to be gotten across to the jury without the State drawing inferences that he has stolen from the Baldwins and the Pikes. I just think the connection with the two crimes is so remote that the prejudice outweighs the causal connection or the method of operation because no one was hurt; a car wasn’t stolen. True, credit cards were, that’s the only thing that connects the two and I believe the most recent cases say that the Court must take a look at the points of comparison between the crimes and if there are similarities —”

The trial judge denied the motion. During his opening argument, defense counsel stated that the appellant was a “thief, a con man, and a liar.” He went on to add that the defense would show one “sham” after another but that these facts would not prove murder.

At trial, evidence was produced that the appellant had in his possession checks and credit cards which were not issued in his name. Mrs. Elizabeth Pike, over objection, was permitted to testify concerning the circumstances surrounding which the appellant was able to steal checks and credit cards from her husband and son, William Perry Baldwin. In his defense, the appellant took the stand and revealed numerous confidence schemes across the country. He then offered the testimony of a psychiatrist which revealed that the appellant committed these numerous thefts out of habit, but this habit did not include murder.

In Hoes v. State, 35 Md. App. 61, 64-65, 368 A. 2d 1080 (1977), this Court quoting from Ross v. State, 276 Md. 664, 669-670, 350 A. 2d 680 (1976), set forth the rule for excluding prior criminal acts:

“ ‘The frequently enunciated general rule in this state, followed uniformly elsewhere, is that in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible. Harrison v. State, 276 Md. 122, 345 A. 2d 830 (1975), MacEwen v. State, 194 Md. 492, 500, 71 A. 2d 464 (1950); Young v. State, 152 Md. 89, 91, 136 A. 46 (1927); Weinstein v. State, 146 Md. 80, 88, 125 A. 889 (1924); Wethington v. State, 3 Md. App. 237, 240, 238 A. 2d 581 (1968); Gorski v. State, 1 Md. App. 200, 202, 228 A. 2d 835 (1967). This principle is merely an application of the policy rule prohibiting the initial introduction by the prosecution of evidence of bad character. Thus, the state may not present evidence of other criminal acts of the accused unless the evidence is “substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.” C. McCormick, Evidence § 190 (2d ed. 1972).’ Id. at 669.
and its exceptions;
“ ‘There are exceptions to this general exclusionary rule which, perhaps, are equally well-recognized. Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial. Wentz v. State, 159 Md. 161, 164, 150 A. 278 (1930); Cothron v. State, 138 Md. 101, 110, 113 A. 620 (1921); Chandler v. State, 23 Md. App. 645, 329 A. 2d 430, cert. denied, 274 Md. 726 (1974); Wethington v. State, Gorski v. State, both supra. Additional exceptions have also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial, Berger v. State, 179 Md. 410, 20 A. 2d 146 (1941); and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. C. McCormick, Evidence § 190, supra.’ Id. at 669-670.”

The State argues that Mrs. Pike’s testimony was simply a link in a very long chain of similar events leading ultimately to the victims in this case. It contends that this showed a common scheme insofar as the theft of valuable articles from friends and acquaintances.

We think that it would be straining the rule if we were to adopt the State’s argument. The appellant was charged with murder and larceny of an automobile. Mrs. Pike’s testimony established the theft of credit cards in order to commit false pretenses and forgery. The crimes with which the appellant was charged and the independent crimes are totally unrelated. The scheme involving the Pikes is completely isolated from the Ager-Smith homicides and alleged resulting theft. Inasmuch as the evidence did not fall within the established exceptions to the general rule excluding evidence of other criminal acts, it was irrelevant and inadmissible.

In the case at bar, however, we fail to see how the appellant was prejudiced. The general rule is that where testimony objected to comes in later without objection from another witness, there can be no successful claim on appeal that the original error, if any, was prejudicial. Peisner v. State, 236 Md. 137, 144, 202 A. 2d 585 (1964). Furthermore, generally a party waives his objection to testimony by subsequently offering testimony on the same matter. Peisner v. State, supra at 144-145.

Under certain circumstances an exception to the rules stated in Peisner has been expressed. In Davis v. State, 8 Md. App. 327, 329-330, 259 A. 2d 567 (1969), we recognized that the erroneous admission of certain evidence can compel an accused to offer evidence, he would not have otherwise offered, to rebut a prejudicial effect.

We find that the circumstances surrounding the presentation by the appellant of evidence of his prior crimes would not fall within the exception recognized in Davis, supra. During the pretrial motion and in his opening argument, counsel stated that evidence of these crimes would be brought out as part of the defense. It is obvious that the evidence was not produced in response to the ruling of the trial court. For this reason, we invoke the rule stated in Peisner, supra that any error resulting from the admission of evidence by the State of prior criminal acts was harmless because it was merely cumulative, having been also introduced by the defense. Under Dorsey v. State, 276 Md. 638, 652-653, 350 A. 2d 665 (1976), we have no difficulty in finding it harmless beyond a reasonable doubt.

IV. Expert Testimony as to Defendant’s Mental State

In his defense, the appellant called psychiatrist Dr. Merrill Berman as a witness. Initially, he was examined out of the presence of the jury. He testified that in his opinion violence on the part of the appellant would be very unlikely. The most common situation in which he would commit a crime of violence would be if it were necessary for his own self-preservation. There was a very low probability, in his opinion, that the appellant was capable of committing the homicides for which he is charged. The trial judge ruled:

“All right, with regard to the Defendant’s proffer to have Dr. Berman testify, and in essence conclude in any way that this defendant is likely to commit an act of violence, or would not possibly have committed the act of violence, with which we are concerned, the Court has reached the conclusion that Dr. Berman be permitted to testify in a limited fashion, and that would be that he could testify with regard to what he thinks the psychiatric makeup of this person is. He can testify with regard to what his interpretation of the Pike testimony situation was, the anger described by Mrs. Pike, because that was raised by the State. And I think it is fair for him to comment on that.
“He cannot testify with regard to any conclusion that he has reached with regard to whether or not this person might possibly be able to commit an act of violence or to commit an act of violence, or did in fact commit, possibly or not possibly an act of violence in Abingdon at the time these people were killed.
“In other words, no questions will be put to him and no opinion will be expressed by him with regard to what I believe is the ultimate issue in this case, did this man commit an act of violence on March 7th, 1975, at the home of Lyle Ager.
“Now, I would eliminate — I think it is probably important to eliminate this person as a person who is testifying in the sense that we note as a character witness. And I have referred to Section 9-115 of the Courts and Judicial Proceedings Act where the common law situation seems to have been broadened to permit a person, not just to comment on reputation, on a hearsay basis, but with reference to specific acts and giving an opinion based on those acts. And there is an interpretation of that act in Taylor vs State. Taylor vs State is 28 Md. App. 560, and it is followed up in Brown vs State, 29 Md. App. 1. And there is a footnote in the Brown case in which the Court says, ‘We also pointed out in Taylor vs State that when the law speaks of character witness, it is using the word character as a synonym for reputation.’ So we wouldn’t call this doctor, certainly in any sense, a character witness.”

The appellant contends that the psychiatrist should have been permitted to testify concerning the unlikelihood of his committing an act of violence, especially to contradict Mrs. Pike’s testimony showing his propensity for criminal conduct. He adds that the court misconstrued the applicable law when it ruled that the doctor could not testify as a character witness, for the doctor was called not as a character witness but as an expert witness. We point out that the appellant has misconstrued the trial judge’s ruling. The trial judge was simply pointing out that recent cases dealing with the scope of examination of character witnesses, Taylor v. State, 28 Md. App. 560, 346 A. 2d 718 (1975), aff'd, 278 Md. 150, 360 A. 2d 430 (1976) and Brown v. State, 29 Md. App. 1, 349 A. 2d 359 (1975), had no application because this witness was not a character witness. When the law speaks of “character witness” it is using the word “character” as a synonym for “reputation.” Brown v. State, supra at n. 4. The doctor’s testimony was not related to reputation but to disposition. We also point out that the doctor was permitted to assess the traits described by Mrs. Pike. The appellant can assert no error in this respect for he was not restricted in the examination of the witness in this area.

Witnesses ordinarily are permitted to testify only with regard to facts, and the ultimate decision as to whether a certain act was committed or whether a particular person committed that act should generally be left to the trier of fact. This rule has been attacked by Wigmore:

“The fallacy of this doctrine is, of course, that it is both too narrow and too broad, measured by the principle. It is too broad, because, even when the very point in issue is to be spoken to, the jury should have help if it is needed. It is too narrow, because opinion may be inadmissible even when it deals with something other than the point in issue. Furthermore, the rule if carried out strictly and invariably would exclude the most necessary testimony. When all is said, it remains simply one of those impracticable and misconceived utterances which lack any justification in principle.” 7 Wigmore on Evidence § 1921 (3d. ed. 1940).

See also McCormick, Evidence § 11 (1954).

As early as Davis v. State, 38 Md. 15 (1873), the Maryland courts began to erode the former rule when dealing with expert testimony:

“In the trial of cases, however, it often happens, that questions arise, touching the matter of inquiry quite out of the observation and experience of persons in general, but within the observation of others, who from previous study or pursuits, or experience in life, have frequently and habitually brought that class of questions under their observation. And hence it is, that in such cases, persons who from study or experience, have acquired a peculiar knowledge in regard thereto, are permitted to testify, not only as to facts, but also to give their opinions based upon facts within their own knowledge or upon facts proved by other witnesses. The weight to be attached to this kind of evidence, and the grounds upon which it is founded, are matters of course for the consideration of the jury, the sole purpose in thus relaxing the rules of evidence in such cases being to aid jurors in forming a correct judgment in regard to questions, which it is but reasonable to suppose that the witness from his peculiar knowledge and experience, is more competent to judge of than they themselves.” Id. at 37-38.

In Shivers v. Carnaggio, 223 Md. 585, 165 A. 2d 898 (1960), the Court of Appeals recognized that the indications were that Maryland agreed in general with the views of Wigmore and McCormick. The test of the admissibility of an expert’s opinion should be whether his testimony will be of real appreciable help to the trier of fact in deciding the issue presented. Id. at 588; I. W. Berman Prop. v. Porter Bros., 276 Md. 1, 14, 344 A. 2d 65 (1975). It has also been held that a psychiatrist at a defective delinquent hearing may express an opinion on the ultimate issue, that is, whether or not he was a defective delinquent. Director v. Daniels, 243 Md. 16, 48, 221 A. 2d 397 (1966).

Whether an expert’s opinion will assist the trier of fact is a decision for the trial judge.

“The general rule is that the allowance or disallowance of the testimony of expert witnesses is addressed to the sound discretion of the trial court and the exercise of that discretion will not be disturbed on appeal unless such ruling is clearly erroneous or there has been a clear abuse of discretion.” Brown, supra at 11.

In the case at bar, we agree with the appellant that the jury was entitled to the opinion of a qualified expert concerning the appellant’s psychological makeup in deciding whether to believe the defense that he was a passivist. See United States v. Staggs, 553 F. 2d 1073 (7th Cir. 1977). This type of testimony the trial court in the instant case allowed. The trial judge did not allow a conclusion to be admitted which was not supported by a reasonable medical certainty. The witness proffered that there “is no way in the world I can say he didn’t commit these [homicides] but I can say according to his lifestyle, this would be totally out of character.” In other words, the witness stated that he could not give an ultimate conclusion as to whether the appellant committed the homicides, but he could testify as to the appellant’s peaceful disposition. We can find no abuse of discretion on the part of the trial judge when he allowed testimony concerning the psychological makeup of the appellant but not an ultimate conclusion, which the doctor admitted he was not competent to make.

V. Sufficiency of the Evidence

Appellant’s final contention is that the “State failed utterly in meeting its burden of proving that Waine was in possession of Marilyn Smith’s automobile against her wishes and not, as he said, with her permission.” The trier of fact was under no obligation to believe appellant’s testimony that he had been given permission to take the automobile. Rasnick v. State, 7 Md. App. 564, 567, 256 A. 2d 543 (1969).

It is true, as appellant contends, that a conviction for larceny requires proof of a trespassory taking. Farlow v. State, 9 Md. App. 515, 265 A. 2d 578 (1970). The State’s version of the incident is that the appellant murdered the victims and absconded in Marilyn Smith’s automobile. The appellant does not challenge the sufficiency of the evidence for the murder convictions. A rational inference exists that the victim to a homicide does not give permission to her attacker to escape in her car.

Judgments affirmed.

Appellant to pay the costs.

      . See Johnson v. State, 271 Md. 189, 315 A. 2d 524 (1974), where the Court of Appeals held that there is now no absolute right of removal.

      . We have determined the validity of the warrants under the United States Constitution. No question is presented concerning the validity under Arizona law.

      . But see State v. Williams, 278 Md. 180, 361 A. 2d 122 (1976), where it was held that a psychologist may not render such an opinion.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    JAMES THOMAS PRICE a/k/a Thomas Leverne Price v. STATE OF MARYLAND
    [No. 1129,
    September Term, 1976.]

      Decided September 9, 1977.

    The cause was argued before Morton, Moore and Lowe, JJ.

      Arthur A. DeLano, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Michael P. Whalen, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

When a stop-and-frisk resulting from a radio lookout leads to an arrest, search and seizure, is it incumbent upon the State in a subsequent suppression hearing to establish the sources of the information — and the reliability thereof — from which the police alert originated? We hold that it is, in this case, where the radio alert and the stop occurred three weeks after the crime.

The appellant, James Thomas Price, was convicted at a jury trial in the Circuit Court for Prince George’s County (McCullough, J.) of burglary, two counts of robbery with a deadly weapon, use of a handgun in the commission of a felony and unlawfully carrying a handgun. He was sentenced to 10 years imprisonment. On appeal, he contends that the trial judge erred in denying his motion to suppress evidence and in refusing to exclude an in-court identification by a State’s witness following an alleged violation of a sequestration order.

We find that a shotgun seized at the time of appellant’s arrest, later introduced into evidence, was obtained in violation of appellants’s Fourth Amendment rights. We reverse on that ground and do not reach the sequestration question.

I

At trial, there was evidence from which the jury could find that Floyd and Barbara Newbegin of Riverdale, Prince George’s County were robbed by two masked men at gunpoint while at home, in bed, in the early hours of March 29, 1975. The appellant was identified at trial by both victims as one of the perpetrators. They said he was armed with a sawed-off shotgun and was wearing a woman’s stocking over his face.

Three weeks later, on April 18, 1975, Officer Kenneth, P. Bogue of the Prince George’s County Police received a radio alert, while on routine patrol in Hyattsville, for an armed robbery suspect. The broadcast named James Price, who was believed to be driving a 1966 silver Cadillac with Maryland tags BKS 724, and stated that the suspect was in possession of a shotgun, stolen goods and narcotics.

Fortuitously, Officer Bogue observed in his rear view mirror a vehicle matching the radio description. The policeman cautiously waited for the suspect’s car to pull into a gas station and the occupant, later identified as the appellant, alighted from the car. At that time, the officer approached appellant and turned him around to pat him down for weapons. When a knife was felt in the appellant’s pocket, the officer seized it and arrested him for carrying a concealed weapon. The appellant then identified himself as James Price.

While the car was still parked at the service station, another officer, Daniel Statkus, searched the trunk. A footlocker was found which contained personal effects, a shotgun, 2 cameras and an undisclosed amount of heroin.

Appellant argues that the State failed to establish at the suppression hearing the requisite “reasonable suspicion” to justify Officer Bogue’s stopping the appellant and frisking him for weapons. Consequently, it is argued, the admission of the shotgun into evidence was improper and constituted reversible error. Alternatively, it is contended that even if the “stop and frisk” was justified, the police were required to obtain a warrant before searching appellant’s car. Because we find that the State failed to justify the stop and frisk, we need not examine the alternative assignment of error.

II

At the outset, we note what is not involved in this case. The State does not contend, and it should not, that Officer Bogue had probable cause to arrest the appellant at the time he received the radio alert. See Whiteley v. Warden, 401 U. S. 560, 568-69 (1971). Rather, the State seeks to justify Officer Bogue’s intrusion upon the constitutionally protected interests of the appellant by application of the “stop and frisk” doctrine of Terry v. Ohio, 392 U. S. 1 (1968).

In Terry, the Supreme Court held “that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” 892 U. S. at 22. And, in recognition of the danger inherent in the performance of an officer’s duties in investigating criminal behavior, “[w]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous,” he may conduct a limited and reasonable search for weapons. Id. at 30. The measure of the permitted scope of the “stop and frisk” is the Fourth Amendment’s “Reasonableness Clause,” so that “in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch’, but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” (Emphasis added.) 392 U. S. at 27. The police officer must be able to point to “specific and articulable facts” which would reasonably warrant the particular intrusion, Id. at 21, when such intrusion is subjected to the detached and neutral scrutiny of a judge who must evaluate the reasonableness of the officer’s actions. 392 U. S. at 21; Gibbs v. State, 18 Md. App. 230, 306 A. 2d 587 (1973).

In the instant case, at the suppression hearing, Officer Bogue testified that he had no independent information or knowledge of the appellant’s alleged criminal activity. Neither he nor Officer Statkus was a member of an investigative team. The officer stated that the only reason he stopped the suspect, and subsequently frisked him, was the radio alert. The radio broadcast itself, according to the policeman, did not disclose the basis for the issuance of the lookout. Indeed, when the trial judge inquired concerning the source of the police department’s information relating to the radio alert, the State’s Attorney responded, “I don’t know where that information came from, Your Honor.”

The test of the reliability of information received by a police officer immediately prior to a stop is not the same in a case like the present as that which is applicable when police officers converge upon the scene of a crime and, upon the basis of rapid interviews with the victim and/or witnesses, communicate to headquarters a request for a lookout describing the suspects and their means of escape. In such situations a “fair inference” can be made that the information was reasonably reliable and was related by unnamed informants at the scene. See Mobley v. State, 270 Md. 76, 310 A. 2d 803 (1973). In Jones v. State, 242 Md. 95, 218 A. 2d 7 (1966), the Court recognized that the officer who put out a lookout could not remember exactly who had given him all the information. In this connection, however, the Court observed that '.the test of the reliability of the information received by an officer on the scene is different from that which obtains when there is time for the procuring of a search warrant. Id. at 101. Speaking for the Court, Judge Oppenheimer stated:

“When a crime of violence has been committed in the early morning hours, and the only chance of apprehending the suspected criminal seems to be a prompt apprehension of the car in which he was driving away, the investigating officer cannot be expected to take the time to ascertain and make notes of the names and backgrounds of all the persons at the scene who told him what they had observed. Our system of justice must be responsive, not only to the needs of individual liberty, but also to the rights of the community. United States v. Ventresca, 380 U. S. 102, 112 (1965).” 242 Md. at 101.

But the facts and circumstances involved in this appeal are vastly different. The testifying officer at the suppression hearing had no connection whatsoever with the radio alert nor with the investigation of the crime, and was indeed a complete stranger to the criminal events which had transpired three weeks before. The State offered no testimony from the police officer or other police employee who may have broadcast the radio alert, nor did it advance any background information pertaining to the broadcast heard by Officer Bogue.

We believe the State failed to meet its burden of specifying the particular and articulable facts upon which the police were justified in intruding upon the appellant’s right to personal security. The holdings of Terry and its companion case, Sibron v. New York, 392 U. S. 40 (1968), make it clear that a “police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen ... he must have constitutionally adequate, reasonable grounds for doing so.” (Emphasis added.) 392 U. S. at 64. We cannot accept the argument of the State that the mere broadcast of information over a police radio, in and of itself, constitutes “constitutionally adequate” grounds to justify the intrusion. We hold that the State should have produced some testimony at the suppression hearing to indicate the factual basis upon which the radio alert was issued and thus have enabled the court to evaluate the reasonableness of the “stop and frisk” and the ensuing arrest, search and seizure.

In placing this burden upon the State, we cast no aspersions upon the individual actions of Officer Bogue in this case. Indeed his police action conformed to the highest standards. This, however, is not the issue. As Chief Justice Warren stated in Terry, “[T]he issue is not the abstract propriety of the police conduct, but the admissibility against petitioner of the evidence uncovered by the search and seizure.” 392 U. S. at 12. In this connection, it cannot be validly maintained that in acting upon the radio alert, Officer Bogue correctly assumed that whoever authorized the lookout had proper grounds to direct that appellant be stopped. Such an argument was rejected by the Supreme Court in Whiteley v. Warden, supra, where Wyoming sought to justify a search incident to an arrest, made, after a radio alert, upon the basis of probable cause. The State argued that since the arresting officer received a description of the defendant over a police broadcast he could have “reasonably assumed that whoever authorized the bulletin had probable cause to [arrest].” 401 U. S. at 568. In rejecting this contention, Justice Harlan wrote:

“We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest. ” (Emphasis added.) Id. Accord, Peterson v. State, 15 Md. App. 478, 487, 292 A. 2d 714 (1972).

We recognize, of course, that the grounds upon which a stop and frisk may be supported need not constitute probable cause; but the principle enunciated in Whiteley v. Warden, supra, remains the same. The transmission of a description of a suspect over the airwaves does not on its own constitute “reasonable grounds for suspicion.”

Here, it was impossible for the trial judge to have determined whether there existed “reasonable grounds” for suspecting the appellant because the State failed to disclose how the police obtained their information leading to the issuance of the radio bulletin. That information could have been obtained in a variety of ways — through ordinary police investigation; or through a reliable police informant; or an unreliable informant; a tipster or an eyewitness. Without such evidence, the trial court erred in not suppressing the evidence seized as a result of the “stop and frisk.”

The State’s reliance upon Williams v. State, 19 Md. App. 204 (1973) is misplaced. There, this Court upheld the validity of a “stop and frisk” where the arresting officer, after hearing a police radio broadcast, observed the defendant’s car, with four occupants, stationed in a deserted parking lot late at night and the shooting incident which was the subject of the alert had occurred in the same neighborhood some ninety minutes before the officer stopped the defendant. In the case sub judice, the robbery had taken place several weeks prior to the radio alert, in a different area of the county and, most significantly, Officer Bogue testified that there were no independent grounds, other than the police alert, to suspect the appellant. Similarly, the trial court’s reliance upon Adams v. Williams, 407 U. S. 143 (1972) is misplaced. There, the Supreme Court upheld a “stop and frisk” where the police officer acted upon information, from a known informant, that was immediately verifiable at the scene. A more apposite United States case is United States v. Robinson, 536 F. 2d 1298 (9th Cir. 1976), involving a vehicle theft in Nevada and apprehension of the accused in Arizona, where it was held that the Government should have presented the factual basis for a radio alert in Arizona in order to justify a subsequent stop and frisk.

Our conclusion that the trial court erred in not suppressing the shotgun is not dispositive of this appeal. Although the testimony of Floyd and Barbara Newbegin, the victims, was sufficient to convict the appellant without the introduction of the shotgun, in order to affirm these convictions we would have “to declare a belief, beyond a reasonable doubt, that the [suppression] error in no way influenced the verdict... .” (Emphasis added.) Dorsey v. State, 276 Md. 638, 659 (1976). Otherwise a reversal is mandated.

The victims testified that they viewed their attackers for only a few minutes from a distance of six to eight feet. However, both of the burglars were wearing stocking masks during the entire holdup. Although both Mr. and Mrs. Newbegin did identify the appellant as one of the perpetrators, the trial judge stated, “I realize that the eyewitness testimony wasn’t the best.” Here, the jury heard the testimony of the victims that one of the persons who entered their home, whom they identified as the appellant, carried a sawed-off shotgun. The arresting officer testified that at the time the appellant was apprehended he was carrying in his car a sawed-off shotgun.

Under these circumstances, we cannot say “that there is no reasonable possibility that the evidence complained of.. . may have contributed to the rendition of the guilty verdict.” Dorsey, supra, 276 Md. at 659.

Judgments reversed; case remanded for a new trial; Prince George’s County to pay the costs.

      . The appellant was given a 10 year sentence for the burglary conviction; 10 years each on the two robbery counts; and 3 years each for the handgun convictions, each of the sentences were imposed concurrently.

      . The indictment in this case charges only those offenses which occurred on March 29,1975, the date of the Newbegin burglary.

      . In a colloquy with the trial court on the hearing of another motion, the State’s Attorney disclosed that an informant aided the police in their investigation of the Newbegin robbery. Whether this source supplied the police with the information concerning the appellant is not revealed.


text:
    EAST COAST FREIGHT LINES, INC. et al. v. RAY L. HARRIS
    [No. 1057,
    September Term, 1976.]

      Decided September 13, 1977.

    Appeal from the Circuit Court for Baltimore County (Proctor, J.).

      The cause was argued before Moylan, Davidson and Moore, JJ.

      J. Edward Martin, Jr., for appellants.

      M. Stanley Radeliffe, with whom was Dennis J. Psoras on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

This appeal in a workmen’s compensation case involves a procedural question rather than the merits of the employee-appellee’s claim.

At issue is whether or not the Workmen’s Compensation Commission, after a hearing, properly vacated an automatic Award of Compensation for temporary total disability, i.e., an award made without a hearing after the filing of the employee’s claim, where the insurer did not present “Issues” until three days after the award and some ten days after the “Consideration Date” designated by the Commission.

The Circuit Court for Baltimore County (MacDaniel, J.) had this question before it during a jury trial upon an appeal by the employee from an Order of the Commission vacating the Award of Compensation. After two days of trial, during which the testimony was substantially concerned with whether or not the appellant was the employer, the court declared a mistrial. Subsequently, the court adopted an Order rescinding the Order appealed from and affirmed the Commission’s original Order. It also “reinstated” the Commission’s finding in the Award of Compensation that the claimant was an employee of the appellant on the date of the accidental injury.

The court’s Order was unaccompanied by an opinion or memorandum setting forth its reasons. It is clear from the record, however, that its action was based upon the provisions of the Annotated Code of Maryland, Art. 101, § 56 (e) (1957, 1964 Repl. Vol.) entitled “Motion for rehearing of decision of Commission,” which provides that a motion for a rehearing may be filed within a prescribed time and “only upon grounds of error of law, or newly discovered evidence.” In our judgment § 56 (e) was not applicable and, for the reasons set forth, we reverse.

I

The appellee, Ray L. Harris, a truck driver earning $800 per week, was injured in an accident on October 23, 1974, and the significant sequence of events thereafter is reflected by the following chronology:

(a) November lb, 197b
Mr. Harris filed an employee’s claim on a form provided by the Workmen’s Compensation Commission. At the bottom of the form in a “box” reserved for Commission use only, the following appeared:
“Consideration Date: Unless a request for hearing is received by the Commission on or before December 2, 1974 an Order will be passed upon the evidence in the hands of the Commission. Any request for hearing shall be filed with the Commission in accordance with Rule No. 9B of the Rules of Procedure.”
(b) November 22, 197b
The Commission addressed a form entitled “Notice to Employer” to East Coast Freight Lines stating that: (1) Commission records disclosed that it did not carry workmen’s compensation insurance; (2) if this information was incorrect, East Coast should immediately contact its insurer who must file “the proper records” on or before the consideration date listed on the claim form; (3) if Commission records were correct and the employer was uninsured but desired to contest the claim, it was required to notify the Commission in writing on or before the consideration date; and (4) if appellant did nothing, “An award will be passed based upon the information supplied on the attached claim form, ” and East Coast, as an uninsured employer, would be assessed a penalty in accordance with Art. 101, § 91.
(c) November 26, 1974
East Coast Freight Lines replied by certified mail to the November 22, 1974 notice, advising that it was insured and that the insurer was the Midland Insurance Company of New York. It also stated that the company’s files contained no report of personal injury submitted by the appellee and that the insurer had been requested to contact the Commission to take appropriate action. The letter concluded: “We shall await your further advice.”
(d) December 9, 1974
The Workmen’s Compensation Commission by Daniel T. Doherty, Chairman, rendered an Award of Compensation on an official form of the Commission, finding temporary total disability and ordering that East Coast Freight Lines pay $102.30 per week during the continuance of the temporary total disability of the claimant, beginning October 27, 1974, subject to further determination by the Commission as to whether the claimant sustained any permanent disability. In addition, as a non-insured, East Coast was assessed $150 plus an additional assessment of 15% of the Award and of any subsequent awards that might be made, not to exceed the sum of $1500.
The Order was said to be “based on the evidence in the record but [the Commission] will reserve the right of both parties to have the issue of average weekly wage adjudicated at the time a hearing is held.”
(e) December 12, 197k
“Issues” were filed on the form prescribed by the Commission, executed by an official of Midland Insurance Company, Towson, Maryland, with copies to the claimant and to East Coast Freight Lines, Inc., a subsidiary of Smith and Solomon, Inc., New Brunswick, New Jersey. Seven separate issues were designated on the printed form, the first of which was whether the claimant was an employee of appellant on October 23, 1974, “or was he an employee of Edwin McDonald Jenkins?” The seventh item designated was, “Such other and further issues as may be raised at the time of hearing.”
(f) December 13, 197k
The Commission issued a form entitled “Notification of Correction,” listing the name of the insurance carrier and reciting, opposite the words “Consideration Date,” the following: “HEARING REQUESTED BY INSURER.” Under the caption, “Remarks,” the form stated: “Certification of Insurance not received until December 13,1974.”
(g) February 25, 27, 1975
Workmen's Compensation Commission hearings were held at Baltimore before G. Howlett Cobourn, Commissioner, on the following issues: (1) Claimant’s motion based upon § 56 (e) of Art. 101; (2) Was the claimant an employee of East Coast Freight Lines, Inc. or of Edwin McDonald Jenkins on October 23, 1974?; (3) Was East Coast Freight Lines, Inc. the employer and was Midland Insurance Company the insurer of claimant on October 23,1974?
(h) April 16, 1975
The above issues were decided against the claimant and an Order was signed by Commissioner Cobourn, in which the Commission’s Order of December 9, 1974 was “rescinded and annulled” and the claim for compensation was disallowed. The reasons for the Commission’s disposition of the employee’s contention under Art. 101, § 56 (e) were not stated.

Mr. Harris thereafter filed an appeal to the Circuit Court of Baltimore County pursuant to Art. 101, § 56 (a) and prayed a jury trial. In his Petition he contended that the Commission erred in its evidentiary findings and in its interpretation of § 56 (e) of Art. 101. The trial commenced on June 16, 1976 and, as previously indicated, on June 17 a mistrial was declared. Thereafter, on July 9, 1976, the lower court signed an Order providing, inter alia:

“[T]hat the decision of the Workmen’s Compensation Commission dated April 16, 1975 is hereby rescinded and annulled and further that the Order of the Workmen’s Compensation Commission dated December 9, 1974 is hereby affirmed and reinstated finding that the claimant was an employee of the employer on October 23, 1974 at the time of the accidental injury.”

On July 12, 1976, a motion was filed by the employer and insurer “for reconsideration of the claimant’s motion under § 56 (e) of Art. 101.” By Order of the Circuit Court (Proctor, J.) the latter motion was denied on September 3,1976.

II

In our consideration of this appeal, two fundamental questions emerge. First, is this really a case for the application of § 56 (e) of Art. 101? Second, if not, what authority supports the action of the Commission in entertaining “Issues” filed after the adoption of an Award of Compensation on December 9, 1974 and vacating that Award?

The claimant has insisted throughout that when the insurer filed “Issues” on December 12, 1974, it was in actuality requesting a rehearing of the Commission’s decision dated December 9,1974, and that its motion was not supported by Art. 101, § 56 (e). That section provides in pertinent part:

“A Motion for a rehearing may be filed within seven days from the date of the decision of the Commission, only upon grounds of error of law, or newly discovered evidence. ” (Emphasis added.) Art. 101, § 56(e).

That the claimant-appellee interprets the filing of “Issues” as a motion for a rehearing, obviously does not make it so. Indeed, in our view of what occurred, no such rehearing was involved and the provisions of § 56 (e) with respect to “error[s] of law or newly discovered evidence” are totally inapplicable. What was perhaps involved, as Commissioner Cobourn suggested to counsel for the claimant at the opening of the Commission hearings, was whether the insurance company’s “Issues” were timely filed since they came after the original consideration date of December 2, 1974; and the proceedings were patently not in the nature of a “rehearing” because no hearing had been held in the first place. The Commission had acted ex parte on the basis of the employee’s claim when it made a temporary award on December 9,1974.

Why the Commission proceeded as it did in this case is not disclosed in the hearings before the Commission nor in its final Order. We think it fair to suggest, however, that because of the confusion that existed with respect to whether or not the appellant was insured, the Commission inadvertently entered its Award of December 9, 1974, which not only allowed compensation for temporary total disability but also erroneously penalized the employer as a non-insured; and that, upon the filing of “Issues” by Midland Insurance Company some ten days after the original Consideration Date, they were accepted and set for hearing because the interests of justice and proper administrative procedure required such action.

The question then arises: Did the Commission have such authority? In our judgment, the answer is clearly affirmative.

As the Court of Appeals had occasion to observe in the case of Plater v. Kane Warehouse Co., 241 Md. 462, 466, 217 A. 2d 102 (1966), the General Assembly of Maryland has declared that, “The powers and jurisdiction of the Commission over each case shall be continuing, and it may, from time to time, make such modifications or changes with respect to former findings or orders with respect thereto as in its opinion may be justified.. ..” (Emphasis added.) Art. 101, § 40 (c). In addition, the Legislature has conferred upon the Commission the power to “adopt reasonable and proper rules to govern its procedure. . . .” Art. 101, § 10. Pursuant to the latter authorization, the Commission has adopted Rule 11 of its Rules of Procedure relating to “Requisites to Application for Review.” That rule reads in its entirety as follows:

“Rule No. 11. The Commission will not grant reviews of awards upon application of a party or parties except such application be made upon the grounds of a change in conditions, as provided in Section 40 of this Article and be accompanied with statement of facts alleged to constitute such change of conditions, but upon its own motion it mil exercise its continuing jurisdiction over each case, and for reasons deemed by it to be sufficient will, from time to time, make such modification or change with respect to its former findings or orders relating to any such case as in its opinion may be just, including the making of awards in cases where they may have been denied, but no award will be changed or modified upon ex parte information unless said information is against the interest of the party giving same.” (Emphasis added.)

We need not decide whether the Commission’s action, in the instant case, was a modification or change within the meaning of Art. 101, § 40 (c). See Plater v. Kane Warehouse Co., supra, 241 Md. at 466-67; Kelly-Springfield Co. v. Roland, 197 Md. 354, 79 A. 2d 153 (1951). What we do decide is that when, as here, the Commission without a hearing renders an award of temporary total disability, it has continuing jurisdiction under § 40 (c) and Rule 11, and may, under the Rule, for good cause, set the case down for a plenary hearing upon “Issues” timely filed. As Judge McWilliams stated in Plater v. Kane Warehouse Co., supra, where the claimant was permitted to withdraw an automatic award of temporary total disability preliminary to refiling in another jurisdiction, and his authority to do so was challenged by the employer and insurer, “[W]e know of no Maryland statute or decision or rule of this Court, which negates the power and authority of the Commission to allow, in appropriate circumstances, the withdrawal of claims and the vacation of awards.” 241 Md. at 467.

Even in the absence of a specific rule, we think the Commission would have authority to reserve continuing jurisdiction where, as here, the award which was made was inadvertent, was not one upon which a hearing had been held, was temporary only and could not be deemed to constitute a final award. See Porter v. Bethlehem-Fairfield Shipyard, Inc., 188 Md. 668, 53 A. 2d 668 (1947); 3 A. Larson, The Law of Workmen’s Compensation § 81.53 (1976).

Order reversed; case remanded for trial; costs to be paid by appellee.

      . The circumstances surrounding the delay are hereafter stated. “Issues,” it may be noted, are filed on a form prescribed by the Commission and constitute a request for hearing and notification that the claim is contested.

      . As indicated infra, this statement was erroneous.

      . This motion appears to have been made orally on behalf of the employee at the outset of the hearings before the Commission.

      . No specific reference is made to the penalty provisions of the Order of December 9, 1974 and it would appear that those provisions were also affirmed.

      . The Commission did not formally suspend its Award of December 9, 1974 prior to the hearing. Such action would, of course, have been appropriate.

      . Under the circumstances of this case, we do not consider Midland’s “Issues” to have been a,t all untimely.