McGuire v. State

Full title: McGUIRE v . STATE

Court: Court of Appeals of Maryland

Date published: Nov 11, 1952

200 Md. 601 (Md. 1952)

92 A.2d 582

Opinion

[No. 7, October Term, 1952.]

Decided November 11, 1952.

CRIMINAL LAW — Indictment Charging Conspiracy to Violate Lottery Laws — Validity of, Upheld. Where on appeal from his conviction of conspiracy to violate the lottery laws appellant attacked the validity of the indictment, on the grounds that it was fatally defective in not specifying the acts constituting a violation of the lottery laws, and that a charge of conspiracy will not lie where concert is necessary to the offense, the Court held that the contentions were without merit, for the reasons stated in Hurwitz v. State, 200 Md. 578. pp. 603-604

CRIMINAL LAW — Evidence — Identification of Accused's Voice. Testimony of a police officer who had tapped a telephone line and recorded certain conversations that he recognized appellant's voice was properly admitted in evidence, it being immaterial that the officer heard the appellant in person after having heard his voice on the telephone, rather than before. At the time of the trial the officer was in a position to make the comparison and his testimony was clearly admissible. pp. 605-606

CRIMINAL LAW — Evidence — Tape Recording of Telephone Conversations — Where Tape Could Not Be Replayed, Stenographic Transcript of Recording Properly Admitted as Secondary Evidence. Where a telephone line was tapped and certain conversations recorded, and due to the subsequent repair of the recording machine the tape could not be replayed so as to reproduce the conversations, the trial court did not err in admitting secondary evidence of the conversations, i.e., the stenographic transcript of the recording, and in any event the police officers who heard the conversations at the time they were recorded and at the time they were transcribed could use the transcript to refresh their independent recollection of the conversations. p. 606

CRIMINAL LAW — Wire Tapping — Admissibility of Evidence Obtained by. Evidence obtained as a result of wire tapping of an interstate telephone communication was held admissible in appellant's prosecution for conspiracy to violate the State lottery laws. pp. 606-607

CRIMINAL LAW — Searches and Seizures — Evidence of Interstate Conspiracy to Violate Maryland Lottery Laws, Seized in District of Columbia by Maryland Officers Without Warrant — Admissibility of — Jurisdiction of Maryland Court — Statements Made by Accused. Where Baltimore City police officers, accompanied by District of Columbia officers, were admitted without a search warrant to an apartment in the District of Columbia by the building manager in the presence of and with the tacit consent of the lessee or his agent, and found appellant hiding there and seized gambling paraphernalia which were in plain view and which appellant admitted were in his handwriting, and, with appellant's consent, took him to Baltimore City where he was indicted, tried before a jury and found guilty of conspiracy to violate the Maryland lottery laws, the Court held that the seizure of the paraphernalia was not unlawful, that the paraphernalia were properly admitted in evidence, there being no merit in appellant's contention that the paraphernalia were inadmissible under the Bouse Act, Code (1951), Art. 35, § 5, and that the evidence was sufficient to sustain the verdict. Appellant was a mere interloper or at best a guest in the apartment, claiming no interest in the premises, and, while the Baltimore City police officers would have had no authority to arrest him for a crime committed in the District of Columbia, the evidence in plain view after the lawful, or at least unobjectionable, entry, tended to show that appellant was engaged in an interstate conspiracy to violate the Maryland lottery laws. Appellant was not arrested in the District of Columbia, but agreed to accompany the officers to Baltimore City, and even if the action of the police in taking him there could be held unlawful, such fact would not affect the jurisdiction of the Maryland court or vitiate his indictment and trial. Further, there was no evidence that the statements made by appellant to the officers were not voluntary, and, in any event, they did not amount to confessions but were merely admissions tending to connect him with the lottery operation. pp. 603-609

R.W.W.

Decided November 11, 1952.

Appeal from the Criminal Court of Baltimore (SHERBOW, J.).

Martin Duane McGuire was tried before a jury in the Criminal Court of Baltimore and convicted on a count of an indictment charging conspiracy to violate the lottery laws, and he appealed.

Affirmed.

The cause was argued before MARKELL, C.J., and DELAPLAINE, COLLINS and HENDERSON, JJ.

Eldridge Hood Young for the appellant.

Kenneth C. Proctor, Assistant Attorney General, with whom were Hall Hammond, Attorney General, Anselm Sodaro, State's Attorney for Baltimore City, William H. Maynard, Deputy State's Attorney, and William C. Rogers, Jr., Assistant State's Attorney, on the brief, for the appellee.

HENDERSON, J., delivered the opinion of the Court.

The appellant in this case was convicted by a jury in the Criminal Court of Baltimore on the second count of an indictment charging conspiracy with one Morton J. Hess to violate the "laws of the State of Maryland relating to lotteries." In his argument in this Court the appellant attacked the validity of the indictment, on the grounds that it was fatally defective in not specifiying the acts constituting a violation of the lottery laws, and that a charge of conspiracy will not lie where concert is necessary to the offense. Both of these points have been fully considered in the case of Hurwitz v. State, 200 Md. 578, 92 A.2d 575, just decided, and for the reasons there stated we find no merit in these contentions. The other questions raised relate to the admissibility of evidence of telephone conversations obtained by wire tapping and the stenographic transcript thereof, and evidence consisting of certain admissions by the accused and lottery paraphenalia seized in Washington, D.C.

It appears from the testimony that on Saturday, June 9, 1951, Lieutenant Amrein and Officer Glass of the Baltimore City Police Department tapped the telephone line leading into the premises 1402 West Baltimore Street (Gilmor 0914), listed in the name of Mrs. Myrtle Hess. Morton J. Hess, appellant's co-defendant, owned and operated a confectionery and delicatessen store at that location. The officers overheard a person who said he was Hess discussing bets and lottery numbers with other persons. Thereafter, the officers rented an apartment near the premises, installed a recording machine, and recorded conversations on June 11th, 12th and 13th. The officers listened to the conversations recorded by means of ear-phones. On June 13th, Officer Glass went to the store and talked to Hess in person under the guise of making purchases.

Among the conversations recorded was a conversation on June 11, 1951, from Gilmor 0914 to Randolph 4037, a number listed to one Cassell in Room 424, Crestwood Apartments, 3900 16th Street, N.W., Washington, D.C. Hess talked to a man he called "Mick" or "Mack" and "laid off" certain numbers on which Hess had "taken play". In other words, as explained by the witnesses, Hess made arrangements with the person in Washington for the latter to underwrite certain bets taken in Baltimore by Hess. There were other calls to this number, all of which were verified as to time and dates by an official of the telephone company. On June 15 the officers obtained a warrant to search Hess's store, but nothing incriminating was found in this search, nor did Hess make any damaging admissions in a rather lengthy conversation with the officers.

On June 25, 1951, the officers went to Washington and to the Crestwood Apartments accompanied by two Washington police. They learned from the manager that four apartments, numbers 424, 426, 429 and 430 had been rented by a Mr. Rosenthal, as agent for Senator Madragal of the Phillippines. Rosenthal came to the door of 429 in response to their knock. They learned that the telephone in 424 had been removed. The door to 430 was locked, but the manager opened it at their request; the appellant was found hiding in the bathroom. He said he had come to the apartment to rest, and that "some man" had given him the key. He denied that he paid rent for the apartment and also denied that he knew Rosenthal. Both Rosenthal and the manager denied that they had ever seen McGuire before. On the table in the room, in plain view, were a large number of lottery slips and tally sheets. The name of Hess appeared on at least one of these sheets. The appellant admitted that the entries were in his handwriting. He admitted that he knew Hess and had visited him in Baltimore. Lieutenant Amrein told McGuire "he could either go with the Washington authorities or he could come to Baltimore with us". After talking privately with Rosenthal, the appellant agreed to go to Baltimore. At Baltimore he made a statement, and was then placed under arrest.

The appellant contends that there was no sufficient identification of the voice of McGuire, as heard by the officers making the wire tap and recorded on the machine. At that time, of course, neither of the officers had ever seen McGuire, but Officer Glass testified at the trial, after the conversations with him on June 25, that he recognized his voice and that he was the same person who talked to Hess on several prior occasions answering to the name of "Mack". It may be noted that the officer not only heard these conversations through earphones, but heard the record played back at the time it was transcribed. It is quite immaterial that he heard McGuire in person after having heard his voice on the telephone, rather than before. At the time of the trial he was in a position to make the comparison and his testimony was clearly admissible. Lenoir v. State, 197 Md. 495, 504, 80 A.2d 3, 7; Rowan v. State, 175 Md. 547, 558, 3 A.2d 753; Wigmore, Evidence (3d ed.) § 2155 (a). Both officers testified that they identified Hess as the person taking and placing bets on the phone and this identification is not challenged.

We find no error in the admission in evidence of the stenographic transcript of the recording. If we assume that the recording tape would have been the best evidence of the conversations, it was explained that the machine had been repaired and after repair the tape could not be replayed so as to reproduce the conversations. Under the circumstances secondary evidence would seem to be in order. Cf. Barranco v. Kostens, 189 Md. 94, 97, 54 A.2d 326. In any event the officers could use the transcript, as they did, to refresh their independent recollection of the conversations they heard at the time they were recorded and at the time they were transcribed. Mercantile Trust Deposit Co. v. Rode, 137 Md. 362, 373, 112 A. 574.

The contention that these conversations were inadmissible because obtained by wire tapping, was fully discussed in the recent case of Bratburd v. State, 200 Md. 96, 103-106, 88 A.2d 446, 449 et seq. See also Leon v. State, 180 Md. 279, 284, 23 A.2d 706, certiorari denied 316 U.S. 680, 62 S.Ct. 1107, 86 L.Ed. 1753. It was there held, in the light of the relevant federal and state decisions, that the use of such evidence was not precluded by the Fourth Amendment to the Federal Constitution or by the 22nd Article of the Maryland Declaration of Rights. It was also held that the Federal Communications Act of 1934 (47 U.S.C.A., § 605) had no application to an intrastate telephone communication, and that the Bouse Act, 1951 Code, Article 35, § 5 was likewise inapplicable. Following earlier decisions it was held that evidence is admissible even though it may have been illegally obtained. The appellant contends that the instant case is distinguishable because the tap intercepted an interstate call. It should be noted, however, that the federal statute, as construed by the Supreme Court in Weiss v. U.S., 308 U.S. 321, 329, 60 S.Ct. 269, 84 L.Ed. 298, applies to both interstate and intrastate communications. Evidence obtained by wire tapping has been held admissible in State prosecutions, not because the federal statute is limited to interstate communications, but because it is "presumed to be limited in effect to the federal jurisdiction and not to supersede a state's exercise of its police power unless there be a clear manifestation to the contrary". Harlem Check Cashing Corp. v. Bell, 296 N.Y. 15, 68 N.E.2d 854, 855; People v. Stemmer, 298 N.Y. 728, 83 N.E.2d 141, affirmed by an equally divided court, 336 U.S. 963, 69 S.Ct. 936, 93 L.Ed. 1115, petition for rehearing denied, 337 U.S. 921, 69 S.Ct. 1153, 93 L.Ed. 1730. In the absence of a decision of the Supreme Court to the contrary, we adhere to the view that the evidence obtained by wire tapping in the instant case was admissible.

The appellant next contends that the evidence obtained in number 430 of the Crestwood Apartments was inadmissible under the Bouse Act, which makes inadmissible, in prosecutions for misdemeanors of the type in question, evidence "procured by, through or in consequence of any illegal search or seizure". If the incident had taken place in Maryland, it seems clear that the evidence would have been admissible on several grounds. While the police had no search warrant they were admitted to apartment number 430 by the manager for the landlord in the presence of, and with the tacit consent of, the lessee or his agent, Rosenthal. Kershaw v. State, 199 Md. 135, 138, 85 A.2d 783, 785. It is also clear under the Maryland authorities that McGuire, as a mere interloper or at best a guest, claiming no interest in the premises, would have no standing to object to the entry. Saunders v. State, 199 Md. 568, 572-573, 87 A.2d 618, 620 and cases cited. Upon entry, the gambling paraphernalia were in plain view and no search was necessary. McGuire admitted that the entries were in his handwriting. Had the incident occurred in Maryland, the officers would have been justified in arresting McGuire and seizing the evidence of a crime committed in their presence.

It is contended, however, that the legality of the seizure depends upon the law of the place where made, rather than the law of the forum. If we assume, without deciding, that the Bouse Act is broad enough to cover seizures made outside the State, and that the principle stated is applicable, we do not find that the law of the District of Columbia is materially different from the law of Maryland as applied to the facts in the instant case. See Shore v. U.S., 60 App. D.C., 137, 49 F.2d 519, certiorari denied 283 U.S. 865, 51 S.Ct. 656, 75 L.Ed. 1469, (cited in Saunders v. State, supra) and Gibson v. U.S. 80 U.S. App. D.C., 81, 149 F.2d 381, certiorari denied. O'Kelly v. United States, 326 U.S. 724, 66 S.Ct. 29, 90 L.Ed. 429. We do not understand that the principles that an entry by consent freely given is not illegal, and that an interest in the premises greater than that of a guest is prerequisite to a valid objection, are shaken by McDonald v. U.S., 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, or U.S. v. Jeffers, 342 U.S. 48, 72 S.Ct. 93. See also U.S. v. Blok, 88 U.S. App. D.C. 326, 188 F.2d 1019. It is true that the Baltimore police would have had no authority to arrest McGuire for a crime committed in Washington. But the evidence in plain view after the lawful, or at least unobjectionable, entry, tended to show that McGuire was not merely engaged in an activity which may have been in violation of the laws of the District of Columbia, but that he was engaged in an interstate conspiracy to violate the Maryland law by participating in a Maryland lottery operation. Cf. Bloomer v. State, 48 Md. 521, 535. Under the circumstances we cannot find that the seizure of the evidence was unlawful. Moreover, McGuire was not arrested at that time; the testimony is clear that he agreed to accompany the officers to Baltimore rather than to remain in Washington and perhaps face charges there and eventual extradition. Even if the action of the police in taking McGuire to Baltimore could be held to be unlawful, such fact would not affect the jurisdiction of the Maryland court or vitiate his indictment and trial. Davis v. Brady, 188 Md. 113, 51 A.2d 827; Rigor v. State, 101 Md. 465, 61 A. 613. See also note 165 A.L.R. 948. There is no merit in the contention that the statements made by McGuire in Washington and in Baltimore were not voluntary. There is no evidence that he was forced or improperly induced to make them. In any event, they did not amount to confessions, but were merely admissions tending to connect him with the operation conducted by Hess in Baltimore. Cf. Delnegro v. State, 198 Md. 80, 87, 81 A.2d 241, 245. Finding no error in the admission of any of the evidence challenged, it was legally sufficient to sustain the verdict.

Judgment affirmed, with costs.