Vines v. State

Melvin, J.,

delivered the opinion of the Court. Moylan, J., concurs and filed a concurring opinion at page 668 infra. Lowe, J., dissents and filed a dissenting opinion at page 867 infra,

On May 18,1976, the appellant, Jasper Vines, Jr., was found guilty at a jury trial in the Criminal Court of Baltimore of possession of heroin in sufficient quantity to indicate an intent to distribute. He had been charged with that offense as a subsequent offender, and following the jury verdict on May 18,1976, elected to have the issue of whether or not he was a subsequent offender tried by the court. The court determined that he was a subsequent offender and on July 22, 1976, he was sentenced to the custody of the Division of Correction for a period of 20 years.

In this appeal, four questions are presented:

“1. Did the trial judge err in denying Appellant’s motion to suppress his alleged confession?
2. Is Appellant’s conviction and sentence as a second offender under Article 27, § 800 null and void?
8. Did the trial judge err in denying Appellant’s motion to suppress evidence?
4. Was the evidence sufficient to sustain Appellant’s conviction?”

As we find no reversible error, the judgment below will be affirmed.

I

Appellant was arrested on September 15,1975, at his home at 420 North Castle Street in Baltimore during the execution *660of a search and seizure warrant. He was taken to police headquarters and advised of his Miranda rights by Detective Snipes, whereupon appellant stated he did not want to answer any questions and according to police witnesses none were thereafter asked. Appellant was then taken from the interview room to the “roll call” room in the same building. There was a table in the roll call room on top of which were displayed several “tinfoil packets”. One of the three police officers in the room then told the appellant that the items displayed had been recovered from 420 North Castle Street. According to police testimony the appellant then “stated that it was his stuff” and “wanted to know what he could do to help himself out”. On appeal, appellant contends that the display of narcotics was tantamount to unlawful “interrogation” in violation of the dictates of Miranda v. Arizona, 384 U. S. 436 (1966). We disagree.

As stated by the U. S. Supreme Court in Miranda, supra, at 478:

“In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement.-Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated.... Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” (Emphasis supplied)

Under the circumstances here, we do not interpret the statement made by the police to the appellant and the appellant’s viewing of the narcotics as “interrogation” simply because they were followed by an incriminating disclosure from the appellant. See Brewer v. Williams, 430 U. S. 387, 419-420 (1977) (Burger, C. J. dissenting); Howell v. State, 5 *661Md. App. 337 (1968); Hopkins v. State, 19 Md. App. 414 (1973), cert. denied, 271 Md; 738 (1974); Cummings v. State, 27 Md. App. 361 (1975); Dent v. State, 33 Md. App. 547 (1976); Humphrey v. State, 39 Md. App. 484 (1978). Thus, although the inculpatory statements were made in a custodial setting, we hold that they were not the product of “interrogation” proscribed by the Miranda decision.

Appellant’s further claim that the inculpatory statements were not voluntary as being the result of “phsychological coercion” is likewise without merit. It is not disputed that shortly before making the inculpatory disclosure, appellant had been fully apprised of his right to remain silent and that anything he said might be used against him in a court of law. It is also undisputed that he understood those rights. Merely because the police entertained the hope (not expressed to appellant) that the display of narcotics would produce an incriminating statement does not mean that in allowing the appellant to view the display they were improperly compelling, coercing, or inducing the appellant to speak. We agree with the trial judge who, in denying the motion to suppress, said: “The defendant I don’t think was compelled under the atmosphere to say anything, and he wasn’t asked any questions as far as I am concerned in the roll call room”. Ironically, according to appellant’s version of the events in the roll call room, the police never informed him that the drugs displayed were seized in the raid on his house, but rather in the area of a nearby bar — thus rendering the notion of “phsychological coercion” even more remote.

Our independent review of the record as a whole convinces us that the appellant’s constitutional privilege against compulsory self-incrimination was in no way violated.

II

Appellant contends that his conviction and sentence as a subsequent offender is a nullity because the addendum filed with the indictment pursuant to then Rule 713 b referred to the wrong section number of Article 27 (i.e. section 300 instead of section 293). This contention is likewise devoid of *662merit. The addendum properly set forth all the facts necessary to charge appellant as a subsequent offender under the correct section number (293). The parenthetical notation to section 300 at the end of the addendum was non-essential and mere surplusage. As said by the Court in Sonnier v. United States, 314 F. 2d 69, 70 (4th Cir. 1963), the appellant “could not have been more clearly informed of the nature of the charge against him if the correct citation had been made”. See, also, Kirsner v. State, 24 Md. App. 579, 583, cert. denied, 275 Md. 752 (1975).

Ill

The appellant attacks the sufficiency of the probable cause in the application for the search and seizure warrant that resulted in his arrest and the seizure of the heroin he was charged with possessing. Applying the “two pronged test” of Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969), we note that appellant argues only that the “veracity prong” of the test has not been met. In this regard, the affidavit in support of the warrant states:

“[The informant] has proven to be reliable in the past and has supplied your affiant information which has led directly to the arrest of (1) person for a narcotic violation and the recovery of a quantity of controlled dangerous substance. [The informant] has also made another controlled narcotic purchase for your affiant. [The informant] has supplied information to your affiant which your affiant has verified and found to be true and factual. [The informant] states that he or she is familiar with heroin and its effects and has used heroin in the past. [The informant] further stated that he or she is also familiar with the manner in which heroin is packaged for street sales and the prices of heroin.”

In addition, the affidavit describes in detail a “controlled buy” from the appellant performed by the informant under the direct supervision of the affiant.

*663Under the circumstances, we have no difficulty in concluding that there was sufficient probable cause for issuance of the warrant. Sewell v. State, 34 Md. App. 691 (1977).

IV

Finally, appellant challenges the sufficiency of the evidence to warrant his conviction. Our review of the record convinces us that this contention is totally meritless. Williams and McClelland v. State, 5 Md. App. 450 (1968).

Judgment affirmed.

Costs to be paid by appellant.