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Gross v. State

Decided: July 3, 1964.

GROSS
v.
STATE



Appeal from the Criminal Court of Baltimore (OPPENHEIMER and CULLEN, JJ.).

The cause was argued before Brune, C.J., and Hammond, Prescott, Marbury and Sybert, JJ.

Prescott

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

Maxine Gross, also known as Vicky Storm, was found guilty of murder in the first degree without capital punishment in the Criminal Court of Baltimore by Judges Oppenheimer and Cullen, sitting without a jury, and sentenced to life imprisonment.

The questions presented may be grouped as follows: (1) Was the evidence adduced sufficient to sustain a verdict of first degree murder; (2) Did the trial court erroneously rule that certain evidence seized, without a search warrant, by the police in the appellant's hotel room was not the product of an unreasonable search and seizure; and (3) Did the trial court err in admitting, over appellant's objections, certain other evidence?

On Friday, November 23, 1962, the appellant, through her theatrical agent, Gerald Ray, obtained employment as an exotic dancer at Billie's Show Bar, located at 714 S. Broadway in Baltimore City, owned and managed by Victoria Ludgrove. She worked that evening without anything of importance happening, except a conversation that she had with her employer, which will be discussed later.

The next evening, the appellant reported for work at about 10:00 p.m. Prior to the appellant's arrival, Theo Rosenblatt, also known as Dolly Mack, Steve Vaclovic, and Dr. DeLeon, who had frequented Billie's for the prior six months, were already at the bar. During the course of the evening Dolly Mack introduced the appellant to Dr. DeLeon and the four of them had several drinks together. When the bar closed at 2:00 a.m. on November 25, they left together.

They proceeded to a Chinese restaurant on Park Avenue in Baltimore City in Dr. DeLeon's car, where they had a late meal. Leaving the restaurant at about 3:00 a.m., they proceeded to 30 West Biddle Street, the home of Dolly Mack, where Dolly Mack and Steve Vaclovic left the car. Dr. DeLeon and the appellant proceeded to the Mayfair Hotel, located at Charles St.

and Mount Royal Ave., where the doctor later met his death.

Dr. DeLeon arrived at the hotel and checked in at 3:11 a.m. on November 25, 1962. Immediately after checking in and being shown room 512 on the fifth floor of the hotel, he went back downstairs and joined the appellant at the Stage Door Restaurant, located next door to the hotel. Sometime after 4:00 a.m. that morning, Dr. DeLeon returned to his room at the hotel.

At about 4:30 a.m., the appellant, who lived on the first floor of the hotel, made several attempts to go upstairs to the fifth floor for the purpose of meeting Dr. DeLeon. The night manager of the hotel, the bellhop, and the elevator operator on duty at that time prevented her from doing so, although she protested strenuously. Her protests were so vigorous that the manager of the hotel, Louis Green, who was not on duty at that time but who occupied an apartment in this hotel with his wife, was telephoned by the night manager and was advised of the disturbance that the appellant was causing. Acting on this complaint, he spoke with her on the telephone, demanded that she cease the disturbance, and reminded her of the hotel's policy of not allowing guests to travel between the floors of the hotel for the purpose of visiting other guests.

The appellant again attempted to reach the fifth floor the next morning between 8:00 a.m. and 9:00 a.m., and was once again rebuked by the hotel management. She was not seen by the employees of the hotel on duty on November 25, from 9:00 a.m. until about 4:00 p.m. that afternoon.

At about 3:00 p.m. on that Sunday, Louis Green, the said manager of the hotel, contacted room 512, where Dr. DeLeon was registered, for the purpose of inquiring as to whether the doctor planned to check out or whether he would stay another day. The contact was made by telephone and a male voice answered, informing Mr. Green that he would stay for another day and that he would be down to the desk soon for the purpose of paying the next day's room rent. When Mr. Green did not see Dr. DeLeon within half and hour after the first contact, he again telephoned room 512. This time the telephone rang for approximately one minute with no answer. Thereupon Mr. Green went to the fifth floor personally to check on room

512. He found a "Do Not Disturb" sign on the door and heard the shower running inside the room. Assuming that Dr. DeLeon was taking a shower, he decided to return to the desk in the lobby and to await the doctor's coming down to pay the rent. After another one-half hour wait without seeing Dr. DeLeon, Green again telephoned room 512, and on this occasion a woman answered. Surprised by the woman's voice, Green demanded, "What are you doing up there, you're not supposed to be in [there], there's a man checked in, you are not supposed to be in that room?" The woman replied, "I'll come down and I'll pay you."

Green immediately rushed to the fifth floor, knocked on the door of room 512, and demanded entry. A female voice responded, "I'll come down and pay, I'll come down and pay." When Green smelled smoke coming from the room, his request for entry became more demanding and he warned, "If you don't open the door I am going to call the police." Following this threat, the woman inside the room opened the door to the extent of about 4 inches where the door was caught by a chain latch.

Through the partially opened door, Green caught a brief glimpse of the woman inside the room. Although he was not able to notice her facial features, he saw that she had blond hair similar in color to the wig worn by the appellant from the time that she met Dr. DeLeon at Billie's Show Bar until she was later seen leaving the hotel after his death was discovered. (Her wig was seized, afterwards, in room 122 by the police.) The door was only partially open for just a moment and then was slammed.

Green hurried to the adjoining room, which was vacant at the time, and called the desk, instructing the desk clerk to call the police. After calling the desk clerk, Green heard the door of room 512 open, but by the time he got into the hall to attempt to observe the person who had come out of room 512, the person had gone back in and closed the door. About 8 minutes after making his first call to the desk clerk, green again called the desk from the adjoining room, at which time he was informed that the police had arrived. He immediately went down to the lobby to meet them.

Officer Petza and Officer Neuman of the Baltimore City Police Department were the first policemen to answer the call, arriving at about 4:12 p.m. They immediately proceeded to the fifth floor on the elevator, and Green opened the door to room 512 with his pass key since by this time the chain latch was off. The room was full of smoke, and after opening the windows of the room for the purpose of clearing the smoke, they found no one there. Looking into the bathroom, they found the body of Dr. DeLeon in the shower stall, wrapped in bed sheets which had been ignited and which were burning. The fire was extinguished by turning on the shower.

There was uncontroverted testimony to the effect that the cause of Dr. DeLeon's death was multiple contusions about his head and body, and from the nature of the blows, the medical examiner, Dr. Fisher, was of the opinion that the weapon used must have been a small blunt instrument of about 1 1/2" in diameter, and that the blows caused death shortly after they were inflicted. He was also of the opinion that the burns on the body as a result of the fire, in which it was found, were post mortal in nature. The post mortem examination of the victim showed his blood contained no alcohol and that his gastro-intestinal tract indicated no recent intake of food.

It was shown that within a 13 day period prior to the murder, the appellant had been observed on two occasions with a small sledge hammer, otherwise described as a stone mason's hammer or small hand-maul, in her possession. The diameter of its striking face was estimated at about 2 inches and its weight at 1 pound.

Dr. DeLeon's wallet was found along with other of his personal possessions in the shower stall where his body was found. There was no money in his wallet.

Soon after the first police officers arrived at the hotel, the appellant was seen descending the stairway which leads from the lobby to the upper floors of the hotel, at which time she proceeded immediately to her room, being room 112. Gerald Ray, appellant's theatrical agent, who had his office on the same floor of the hotel, met her at her room, almost as soom as she got there. He testified that at this time she smelled of smoke, was flushed in appearance, and very excited. He also stated that

she continually repeated that she had seen something horrible on the fifth floor and mentioned a fire had occurred there. The appellant informed Ray that she intended to move right away and that she didn't want anyone to know her new address. Thereafter she left the hotel. Before leaving the hotel, she had telephoned her attorney, Nelson Kandel, and arranged to meet him at the hotel; however, she actually met him at the drugstore located across the street from the Mayfair.

After speaking with the appellant at her room, Gerald Ray went out to dinner with his wife. Upon his return to the hotel, he met both Lt. Klump and Sgt. Johnson of the police force, who had arrived to investigate the killing. The officers testified that Ray told them that he had been with the appellant in room 122 at about 4:00 p.m., at which time he noticed blood strewn around her room; that there was blood on her clothing; that her hands were cut (Ray was not interrogated as to whether he told the police that he had seen blood strewn around the room and on her clothing, and that her hands were cut. He did, however, stoutly, deny that he saw any blood in her room or on her clothing, or that her fingers were cut, when he was in her room. He stated that after his return from dinner and he saw appellant in the hotel lobby her fingers were cut slightly and a few drops of blood were on her suit.); her face was flushed; and that she was nervous and smelled of smoke. The officers also testified that Ray told them that the appellant intended to move immediately but that she still was present in room 122.

After talking to Ray, the officers proceeded to room 122 on the first floor of the hotel. They were met by Mrs. Green, the wife of the hotel manager, while they were knocking on the door to room 122, and she advised the officers that the appellant was a very heavy sleeper and often could not be aroused by knocking on the door. After knocking on the door produced no response, Mrs. Green, using a passkey, opened the door and Sgt. Johnson and Lt. Klump, along with Mrs. Green, entered the room. The officers were not in full agreement as to their purpose in entering her room. At the trial they said they were looking for appellant. However, a report made the next day by Sgt. Johnson stated they went into the room "to search for the

murder weapon." In the course of their search, they discovered in plain view, a note which was lying on a desk in the room, which was later introduced into evidence at the trial, and it read as follows:

"1. Be sure that no one can say you went in a hotel room with him.

"2. Be sure his car is paid for, change colors of car, get plates, destroy other plates.

"3. Be quiet when in room, hit him with a hammer over head, put body in tub. Burn until it is destroyed.

"4. Take all papers from body and destroy.

"5. If questioned say nothing. All you say is we went in, we went out to eat and he drove me home and said he had to go somewhere.

"6. Be sure that no hand prints are anywhere.

"7. Be sure take hammer with you, don't forget. Also tell police, ...


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