author: Anderson, J.,

text:
    WILLIAM RANDOLPH SMITH v. STATE OF MARYLAND
    [No. 66,
    September Term, 1967.]

      Decided May 13, 1968.

    The cause was argued before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      Frank P. Flurry and /. Frederick Garner for appellant.

      Bernard h. Gilbert, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Arthur A. Marshall, State’s Attorney for Prince George’s County, and Vincent J. Pemia, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

On February 13, 1967, appellant, William Randolph Smith, was convicted by a jury of robbery with a deadly weapon, in the Circuit Court for Prince George’s County, Judge Ralph W. Powers presiding. Appellant was sentenced to sixteen years in the Maryland Penitentiary.

Appellant raises three contentions on appeal:

1. That appellant was denied a fair trial when the State forced him to stand trial with shaggy, unkempt hair; notwithstanding that the State had kept defendant incarcerated for three months, and had refused his pre-trial requests for a haircut.
2. That the appellant’s confession was inadmissible because the State failed to prove the chain of custody of the defendant’s person from the time of his arrest.
3. That the appellant was entitled to be told of his alleged confession to a third party, in response to defendant’s motion for discovery.

The evidence adduced at the trial established that one Peter Barbera was awakened by his wife, during the early morning hours of July 18, 1965, and was confronted by the presence of two men in his bedroom. One intruder positioned himself in the doorway of the bedroom and the other, while pointing a gun at Mr. Barbera, directed him to turn over. A demand was then made for money. Both men ransacked the Barbera home in an effort to secure the money, but did not meet with success. Thereafter, a threat to harm the Barbera’s young son evoked the whereabouts of the sought after money from Mr. Barbera. After securing some $600 to $650 from him, Mr. Barbera was then tied up with a Venetian blind cord and something was put over his head.

Mr. Barbera described the culprits as both being masked and wearing old clothes. Although unable to physically identify the assailants, he was able to positively identify the voice of the appellant as a former employee. Mr. Barbera made his voice identification, while appellant was in custody, and noted that appellant’s voice was “distinctively high-pitched” and that he had referred to Mrs. Barbera as “Ma’am.”

Witness Robert S. Thompson testified that he was acquainted with the appellant and that while in the presence of the appellant and his brother, sometime in July 1965, he heard the appellant’s brother state that he would tell the police about the “Barbera job.” Appellant admonished his brother to “shut up or they would all get twenty years.” Furthermore, Thompson testified that appellant’s brother, Robert Smith, showed the witness some old clothing and hooded masks, while the witness was visiting the appellant’s apartment.

Detective Sergeant James Ross of the Prince George’s County Police Department, saw the appellant in the county jail in November 1966, at which time he advised the appellant of his rights and secured a signed document from appellant wherein appellant acknowledged being so advised. A second document was secured wherein the appellant “agreed to stay and talk to Detective Ross” about “this matter.”

Appellant’s counsel below objected to the admission of any statement absent a showing of a “chain of custody of the person of defendant from the time he was taken into custody until the time of the confession.” Appellant had been incarcerated for two or three days prior to the confession.

Appellant was not advised by the State of witness Thompson’s expected testimony with respect to appellant’s confession in response to the motion for discovery that he had filed.

The trial court ruled that the State had successfully presented a prima facie showing of voluntariness, in the absence of the appellant establishing that his statement was not free and voluntary.

Appellant repudiated his confession stating he had admitted his participation in the hold-up only to enable him to see his girl friend, Anita Shannon.

During his period of custody, appellant was permitted to use the telephone, a privilege which he fully exercised.

Appellant predicates his primary contention upon the rulings evidenced in the cases of Eaddy v. People, 115 Col. 488, 174 P. 2d 717 (1946); State v. Coursolle, 255 Minn. 384, 97 N. W. 2d 472 (1959); People v. Strauss, 174 Misc. 881, 22 N. Y. S. 2d 155 (1940). These cases are readily distinguishable from the instant case. In Eaddy v. People, supra, the court’s attention was focused upon the manner of apparel allotted to a defendant for trial. While the court found that the subject of a defendant’s apparel rests within the discretion of the trial court, the fact that the defendant was brought to trial, over objection, in prison apparel with the words “County Jail” in large letters, constituted an abuse of that discretion. The court further observed that a defendant has a right to go to trial free from shackles, unless shown to be a desperate character. In State v. Coursolle, supra, the court evidenced its displeasure and intolerance of having a defendant appear at his trial shackled or his witnesses so appear unless the trial court was exercising its discretion based upon “some immediate necessity for the use of the shackles.” In People v. Strauss, supra, the court’s inquiry was directed to the issue of potential disguise and the possibility of adopting a disheveled appearance to enhance a feigned psychosis. There the court observed that the lower court was empowered with sufficient authority to compel shaving, washing, dressing and hair grooming in such a manner as to avoid the possible impeding of justice.

The instant case does not involve prison apparel, shackles nor potential disguise or mental disorder. But rather, a desired haircut, not requested of the court until the start of the trial.

The courts in these aforenoted cases duly recognized that matters of this kind are primarily within the discretion of the trial court and that only a patent abuse of such discretion warranted a reversal. Thus they are in agreement with our observation that the trial court is in an advantageous position to judge the question of prejudice and its decision with reference thereto should not be reversed unless it is clear that there was prejudice. Carroll v. State, 3 Md. App. 50, 51, 237 A. 2d 535, 538 (1968).

Here, while the appellant had requested a haircut prior to trial from the prison authorities, if he had viewed such a tonsorial exercise to be of material import, it would have been more prudent for him to have secured a court order requiring the securing of said haircut sufficiently in advance so as not to hamper the orderly progression of the trial. We further note the absence of the propounding of any relevant voir dire inquiry by appellant. This record is barren of any substantiating evidence of the alleged prejudicial consequence, apart from the bald allegation of the appellant. Upon this record, the absence of the requested haircut constitutes too nebulous an effect to conclude clear prejudice. The trial court did not view the condition of appellant’s hair as prejudicial, nor do we.

The test for the admissibility of a confession is whether it was freely and voluntarily made at a time when the defendant knew and understood what he was saying. Cooper v. State, 1 Md. App. 190, 198, 228 A. 2d 840 (1967). In reaching a determination as to whether a statement was freely and voluntarily given, proper reference must be accorded the totality of the circumstances surrounding the statement. Williams v. State, 2 Md. App. 170, 174, 234 A. 2d 260 (1967) citing Haynes v. Washington, 373 U. S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963). Clearly, whether a confession is voluntary or not depends upon the facts of each case. Boone v. State, 2 Md. App. 80, 233 A. 2d 476 (1967). Cooper v. State, supra, 194.

“The admissibility of a confession is, preliminarily, a matter for the trial judge. Conflicts in testimony as to how the confession was obtained are to be resolved in the first instance by the trial judge and if, after finally and independently resolving the issue of voluntariness against the accused, the trial judge admits the confession, the matter of voluntariness is finally determined by the jury.” Davis and Peterson v. State, 1 Md. App. 581, 585, 232 A. 2d 535 (1967) citing Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); Sims v. Georgia, 385 U. S. 538, 87 S. Ct. 639, 17 L. Ed. 2d 593 (1967). Furthermore, where the trial judge believes that a confession was freely and voluntarily made, his finding will not be disturbed on appeal unless there was a clear abuse of discretion. Boone v. State, supra, 96.

Here, Detective Sergeant James Ross had secured the challenged statement and had testified as to the voluntary character of same as evidenced by two properly executed waivers signed by the appellant and a gratuitous laudatory written statement by appellant relating to the manner of treatment rendered him. Appellant made no proffer of evidence of coercion or inducement specifically directed at other than Sergeant Ross. Appellant alleged that he was induced to render the confession by a promise that thereafter he could see his girl friend. This allegation was contained in appellant’s letter dated November 6 which the State introduced, thus making a complete disclosure of the issue of voluntariness to the jury. The record is clear that the appellant had free access to the telephone and made those calls he desired. The surrounding circumstances of this confession were thoroughly reviewed by the trial judge in reaching his determination of prima facie voluntariness. Thereafter, a full disclosure was made to the jury for their ultimate determination. We find no clear abuse of the trial judge’s discretion. Boone v. State, supra, 96. After this matter went to the jury, appellant made no proffer of evidence to rebut the voluntariness of the statement, but continued to stress that the statement was inadmissible because the State failed to prove the chain of custody over the appellant’s person from the time of arrest to the time he rendered his confession.

While it is well settled that the burden of establishing the voluntary nature of a confession rests upon the State, there is no mandatory rule that this necessitates the calling of all persons having had charge over the individual or having witnessed the taking of the confession to testify as to its voluntary character. Bagley v. State, 232 Md. 86, 93-94, 192 A. 2d 53 (1963). As we stated in Harris v. State, 1 Md. App. 318, 323, 229 A. 2d 604 (1967).

“It may be enough if one credible witness can testify from personal observation that nothing was said or done prior to and during the obtention of a confession to- mar or destroy its voluntary character and there is no claim by the prisoner of improper treatment by others than those covered by such testimony. Streams v. State, 238 Md. 278 (1965).”

We find no merit to appellant’s contention that the State must abide by a stringent requirement of proof evidencing a chain of custody inclusive not only of the party securing the challenged statement but of all “other persons” coming into contact or exhibiting control over the person of the appellant encompassing the full spectrum of time prior to the securing of the statement, absent a showing of extraordinary circumstances embracing a significant degree of specificity in his challenge to the issue of voluntariness.

Appellant’s final contention is without merit. Appellant had filed a Motion for Discovery requesting the State “to furnish the substance of any statement or conversation between the appellant and any other person, which statement or conversation the State intends to produce at the trial of this cause.” No court order was requested by appellant to compel a timely answer. Appellant contends that pursuant to Rule 728 he was entitled to the substance of the oral incriminatory statements he made to one Robert S. Thompson, a witness called by the State.

The short answer is that such an “oral statement” not involving State agents, is not within the purview of Maryland Rule 728. Barton v. State, 2 Md. App. 52, 57, 233 A. 2d 330 (1967).

While appellant claims total surprise in not previously being informed of appellant’s incriminatory statements to Thompson, we note that there was no order pursuant to Maryland Rule 728 b, specifying a time in which the State was required to answer the motion and the record does not show such an order was requested or that appellant sought a delay as a result of being furnished certain information three days before trial on his two month old motion. Nor was there a timely objection to Thompson’s testimony, but rather the appellant elected to cross-examine the witness and therefore waived the issue of surprise on appeal. Maryland Rule 1085. At the close of all the evidence, the appellant moved for a mistrial which was denied. It is clear that the matter of granting or denying a motion for a mistrial is within the discretion of the trial court. Barton v. State, supra, 59. We find no abuse of that discretion.

Judgment affirmed.


source: Caselaw Access Project

author: PLr Curiam.

license: Public Domain

text:
    CLARENCE BRIGHT v. STATE OF MARYLAND
    [No. 141,
    September Term, 1967.]

      Decided May 13, 1968.

    The cause was submitted to Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      Stanley S. Cohen for appellant.

      Bernard L. Silhert, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, and Charles B. Moylan, Jr., State’s Attorney for Baltimore City, on the brief, for appellee.
   PLr Curiam.

On May 22, 1967, the appellant, Clarence Bright, was convicted of burglary in the Criminal Court of Baltimore before Judge James K. Cullen, sitting without a jury. Appellant was sentenced to three years in the Maryland House of Correction.

Appellant’s sole contention raised on this appeal is that the evidence was not sufficient to sustain the conviction.

The thrust of the appellant’s contention is that since the evidence produced at trial established that the offense occurred between 8:00 a.m. and 1:00 p.m. an essential element of burglary is absent, namely, the commission of the offense in the nighttime.

The indictment under which the appellant was convicted alleges “that Clarence Bright * * * feloniously committed burglary in the nighttime of the dwelling of Leatrice Johnson * * We therefore find that appellant’s contention is well taken.

Here the uncontradicted evidence, according to the stipulation entered into between counsel for the appellant and the assistant State’s attorney, shows that the alleged burglary occurred between the hours of 8:00 a.m. and 1:00 p.m., which would be in the daytime and not in the nighttime as alleged in the indictment under which appellant was convicted. The judgment must therefore be reversed.

Judgment reversed and case remanded for a new trial.


author: Per Curiam.

text:
    LINWOOD GRAY v. STATE OF MARYLAND
    [No. 216,
    September Term, 1967.]

      Decided May 13, 1968.

      The cause was argued before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      Karl G. Feissner, with whom was William L. Kaplan on the brief, for appellant.

      Frank A. DeCosta, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Vincent J. Femia, Assistant State’s Attorney for Prince George's County, on the brief, for appellee.
   Per Curiam.

The Appellant, Rinwood Gray, was convicted of robbery with a dangerous and deadly weapon by a jury in the Circuit Court for Prince George’s County, Judge Perry G. Bowen, Jr. presiding, and sentenced to twenty years in the Maryland Penitentiary.

The record indicates that on October 7, 1966, two men, armed with a gun, robbed Robert E. Butler, an employee of Safeway Food Stores, as he was approaching the store with a bag of money which had just been obtained from a local bank. Mr. Butler testified that the Appellant was not one of the two men who robbed him and that the unknown robbers had fled in an automobile driven by a third person. He could give no description of the driver of the car other than that he was a male. A fellow employee who was with Mr. Butler at the time of the robbery also testified that the Appellant was not one of the robbers and he could give no description of the driver of the getaway car. Officer Charles B. Badden testified that he observed the robbery and the flight from the scene in a car occupied by a driver and two passengers. He found the car abandoned approximately five minutes later. He could not identify any of the individuals and could only say that “the driver of the car was a pretty big sized man, as I remember.”

The record further indicates that fingerprints corresponding to those of the Appellant were lifted from the rear view mirror and the right door of the getaway car and from a deck of cards found in the car. It was stipulated by the State and the defense that the automobile in question was the property of National Car Rental. Although the Appellant did not take the stand, an employee of National Car Rental testified that he had given the Appellant a ride in that same car during the period between September 20 and September 25, 1966, and that the Appellant had ridden in the front seat of the automobile.

Among other issues raised in this appeal, the Appellant contends that the lower court erred in denying his Motion for Judgment of Acquittal at the conclusion of the entire case since the only evidence to connect him with the robbery was fingerprint evidence.

At the trial, the State’s Attorney conceded that the State’s case against the Appellant rested solely upon the proposition that the Appellant had driven the getaway car and that the only evidence to sustain this contention was “One, the fingerprint of the man in the car, and, two, Mr. Badden’s minuscule description of the driver of the car.” The fingerprint evidence showed that the accused’s right thumbprint was on the rear view mirror of the car; that he had left a single print on the right hand door of the car near the door handle; and that a number of his fingerprints were found on a deck of cards that had been found in the car. There was no evidence presented as to the probable age of the fingerprints.

It is clear that the jury could find that the Appellant had been in the subject automobile. However, in order to sustain his conviction, the evidence must also be sufficient to show, or to support a rational inference, that the Appellant was in the car at the time of the robbery.

This Court has been called upon to discuss the appropriate principles governing the use of fingerprint evidence on a number of occasions. See Musgrove v. State, 3 Md. App. 54; Hannah v. State, 3 Md. App. 325; Lawless v. State, 3 Md. App. 652; McCargo v. State, 3 Md. App. 646; Mills v. State, 3 Md. App. 693. In each case we have recognized the soundness of the rule enunciated in McNeil v. State, 227 Md. 298, where the Court of Appeals stated:

“It is generally recognized that finger print evidence found at the scene of a crime must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime. 3 Wharton, Criminal Evidence, (12th ed.), Sec. 982; II Wigmore, Evidence (3rd ed.), § 414.”

In Lawless, supra, Judge Orth, in speaking for this Court said:

“From the cases considered, we think it clear that the ‘fingerprint evidence found at the scene of the crime’ as stated in the rule enunciated in McNeil v. State, supra, refers only to that evidence which proved that the print was that of the accused. Thus, the ‘circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime’ need not be circumstances completely independent of the fingerprint, and may properly include circumstances such as the location of the print, the character of the place or premises where it was found and the accessibility of the general public to the object on which the print was impressed. A latent fingerprint found at the scene of the crime, shown to be that of an accused, tends to show that he was at the scene of the crime. The attendant circumstances with respect to the print may show that he was at the scene of the crime at the time it was committed. If they do so show, it is a rational inference, consistent with the rule of law both as to fingerprints and circumstantial evidence, [footnote omitted] that the accused was the criminal agent.”

In the case at bar, we are unable to find any attendant circumstances to show that the Appellant’s fingerprint impressions on the car and the cards therein were affixed at the time the robbery was committed. There was no evidence placing the Appellant at the scene of the crime or in the vicinity thereof. There was no evidence that fruits of the robbery were found in his possession. The FBI agent, who identified the prints as those of the Appellant, was unable to determine their age. On the contrary, it was conceded that the car was owned by National Car Rental and that it was regularly rented to members of the public. Moreover, the only testimony fixing the time the prints were made was that of an employee of National Car Rental to the effect that the Appellant had been legitimately in the automobile several weeks prior to the robbery. The jury was not required to believe this exculpatory testimony. Bury v. State, 2 Md. App. 674. On the other hand, it remains uncontradicted.

The finding of the Appellant’s fingerprints on and in the getaway car, accompanied only by evidence that the driver was “a pretty big sized man” may constitute circumstances which give rise to a suspicion of his guilt. But “when guilt is based solely on circumstantial evidence, the circumstances, taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence.” Vincent v. State, 220 Md. 232; Mills v. State, supra. We cannot find from the record before us any evidence of attendant circumstances with respect to the Appellant’s fingerprints which show that he was at the scene of the crime when it was committed. Otherwise stated, we find no evidence of “other circumstances,” tending to reasonably exclude the hypothesis that the prints were impressed at a time other than that of the crime. Accordingly, the judgment of conviction must be reversed and the case remanded for a new trial. In awarding a new trial, we are aware of the vigorous argument presented on the Appellant’s behalf that a new trial should not be granted, in the event of a reversal, but we are unpersuaded. See Spencer v. State, 1 Md. App. 265, 269; cf. Note, XIII Md. L. Rev. 52 (1953).

We do not reach the Appellant’s other contentions in view of our finding that the evidence was legally insufficient to sustain his conviction.

Judgment reversed and case remanded jor a new trial.


author: Orth, J.,

text:
    JOHN EMORY SIMMS v. STATE OF MARYLAND
    [No. 193,
    September Term, 1967.]

      Decided May 16, 1968.

    The cause was argued before Anderson, Morton, Orth, and Thompson, JJ.

      Harper M. Smith and Kathryn JB. Diggs for appellant.

      H. Bdgar Lentz, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Julian B. Stevens, State’s Attorney for Anne Arundel County, and Bdvdn H. W. Harlan, Jr., State’s Attorney for Harford County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant, charged with the murder of Marguerita LaSueur, was found guilty of murder in the first degree without capital punishment by a jury in the Circuit Court for Harford County and sentenced to imprisonment for life.

The body of Marguerita LaSueur, an octogenarian resident of The Chase Home, a home for elderly women located in Annapolis, was found on the premises in a garden type tool shed on 18 August 1961 about 4:30 P.M. by the manager of the home. She was lying on the floor on her back, her right arm outstretched, her left arm almost to her side. Her dress was pulled up and her underpants were down below her knees. She had no shoes on; one shoe was under a table about two and a half feet away and the other was in an anteroom of the tool shed. There were several bruises and lacerations about her throat. There were stains on her slip and a fresh stain on the floor near her left leg. Near her right side was a broken pocket-type yellow comb. It was the opinion of the medical examiner that she died of manual strangulation. Autopsy findings included that material from the vagina was negative for sperm and prostatic secretion but scrapings from the leg were positive for such secretion. Wood chips from the floor boards containing the stain, the comb and the deceased’s slip were sent to the F.B.I. Laboratory and an analysis made. Stains on the lower portion of the slip contained semen and a very small quantity of blood. The semen originated from a man who was a secretor and that man belonged to Blood Group “A.” The stain on the wood chips was also semen from a secretor belonging to Blood Group “A.” The comb contained hairs. It was found that they had been artificially colored a red-brown and were of Negroid origin. These findings were communicated to the Annapolis Police Department by telephone on 23 August and by written report mailed on 25 August.

On August 27, 1961, about 1:00 A.M., Officer Wallace L. Forte of the City of Annapolis Police Department, while operating a police cruise car, received a call to go to 28 Shaw Street. When he arrived at that address a large crowd was there •and he observed a woman lying on the porch. “She was bleeding from the head — top of the head — head wound. * * * I observed that she was very still; no motion at the time.” He •could not tell at that time whether she was conscious or unconscious but she “was very quiet and still.” He called an ambulance ■and she was taken to the hospital. The officer ascertained that the woman’s name was Grace Brown and that she lived in an upstairs apartment of 28 Shaw Street. He tried to find out what had occurred and received information from one of the persons •on the scene that the appellant, who was then standing in the rear of the crowd, had gone to the upstairs of 28 Shaw Street. 'The officer approached the appellant and “noticed he had quite a good deal of blood on him.” He had “blood on his hands, •forehead, edge of his hair and also his shirt and trousers.” The ■officer asked the appellant “where he got the blood from” and the appellant stated that it came from his mother, that for “strangulization” he had taken her to the hospital. The officer checked with the hospital and again asked the appellant “where the blood had come from, since it had not come from his mother. * * * the answer from the hospital stated that the blood did not come from his mother.” The appellant “then admitted that he had been up in Grace Brown’s apartment * * * he had gone up there with a box of shrimp for her and him to eat, and he observed Grace Brown lying in bed with her back to him and he stated he didn’t know what came over him and made him do it, but he struck her in the head with this hammer.” The officer placed the appellant under arrest. “I charged him then and there with assault and battery on Grace Brown and told him he was under arrest and called for another cruise car to take him to Headquarters.” The appellant was booked about 2:00 A.M. on 27 August, remained in custody, was tried on an assault and battery warrant before a trial magistrate on 30 August and found guilty.

Lieutenant Bernard Kalnoske of the Annapolis Police Department was investigating the homicide of Marguerita LaSueur. On arriving at the police headquarters about 7:30 A.M. on 27 August he noted that the appellant had been booked and was in custody in the rear cell block. At that time he had received the information about the hair from the F.B.I. and remembered from an interview with the appellant on 23 August that he had a “reddish-type cast to his hair.” About 8:00 A.M. the appellant was brought to the fingerprint counter in a hallway near the cell block. Kalnoske told the appellant that “we were getting hair specimens and saliva samples from all the suspects we had been interviewing in regards to the murder case. The appellant said something to the effect in regards, ‘Are you trying to pin that murder on me?’ ” Kalnoske made a statement to the appellant “in regards to the purpose of the hair and saliva samples, for comparison with evidence that we had recovered at the scene of the crime * * * that the evidence would be forwarded to the F.B.I. Laboratory in Washington.” Kalnoske got a pair of scissors and envelopes and “demonstrated (to the appellant) the method in which we obtained the saliva sample.” Kalnoske said, “I showed him how it was done, dropping a few drops of saliva on the paper, and then he done it * * * He followed my example” and gave the saliva specimen. Kalnoske then cut off hairs from the front, back and sides of the appellant’s head. The specimens were placed in envelopes and marked. The appellant was standing while the specimens were taken and was not in restraint in any manner. Corporal Raymond More-land of the Annapolis Police Department was present at the time the hairs and saliva were obtained. He said, although he could not give the exact words, that the appellant “willingly let Lt. Kalnoske take the hair samples and gave us the saliva sample * * * There was permission given by John Emory Simms to go ahead and take the hair samples, and he would give us the saliva sample.” The hairs and saliva obtained from the appellant were sent to the F.B.I. Laboratory. The saliva was found to originate from a secretor who belonged to Blood Group “A.” There was expert testimony that the semen on the wood chips and on the slip could have originated from the appellant. The hairs were of Negroid origin and artificially colored red-brown. They were compared with the hairs from the comb and were similar “under microscopic characteristics.” It was the conclusion of the expert witness that the hairs found in the comb could have come from the appellant.

On appeal it is contended that the arrest of the appellant on 27 August 1961 was illegal and therefore the hair and saliva specimens were unlawfully obtained from him. He urges that the lower court erred:

1) in refusing to instruct the jury on the illegality of his arrest ;
2) in admitting testimony regarding the hairs and saliva;
3) in admitting confessions “rendered involuntary and thus inadmissible where predicated upon a comparative analysis of specimens of hair and saliva obtained from” him illegally.

It is established that an arrest without a warrant is lawful where based upon a misdemeanor committed in the presence of the arresting officer. Shelton v. State, 3 Md. App. 394, 398. We think it clear in the instant case that the crime for which the appellant was arrested was not committed in the presence of the arresting officer. But it has long been the rule in this State that a police officer may arrest without a warrant where there is probable cause to believe that a felony has been committed and that the person arrested committed the felony. Boone v. State, 2 Md. App. 479, 481. Probable cause in this context exists when the facts and circumstances within the knowledge of the arresting officer, or of which he had reasonably trustworthy information, are sufficient to warrant a reasonably cautious person in believing that a felony had been committed by the person arrested. Michaels v. State, 2 Md. App. 424, 428. “[T]he rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that wffiich would arouse a mere suspicion.” Edwardsen v. State, 243 Md. 131, 136; Terrell v. State, 3 Md. App. 340, 359. In assessing the validity of an arrest under the rule the essential ingredient is that probable cause existed within the knowledge of the arresting officer and not that he necessarily construed that knowledge correctly. It is not the belief of the officer that determines the validity of the arrest; it is whether, in the situation in which he found himself, he had probable cause to believe a felony had been committed and that the person arrested committed it. We think untenable the proposition that an arrest based on probable cause becomes unconsitutional because the crime is inaccurately described by an officer or because the officer said the arrest was for a misdemeanor when there was probable cause to believe it was a felony. “To make constitutional questions turn on the term chosen by police officers to describe their activity * * * is to engage in a futile and unwarranted exercise in semantics.” Ralph v. Pepersack, 335 F. 2d 128, 134 (4th Cir.). Nor do we think that the offense of which the accused is subsequently charged or convicted is controlling. Certainly if an arrest is made on probable cause that a robbery was committed, the fact that the accused was charged only with assault or having been charged with robbery and assault was convicted only of assault would not invalidate the arrest. As the court said in Bell v. United States, 254 F. 2d 82 (D. C. Cir.), cert. den. 358 U. S. 885, at page 86:

“But this description given by the officer does not go to the question of probable cause. The question is not what name the officer attached to his action; it is whether, in the situation in which he found himself, he had reasonable ground to believe a felony had been committed and that the men in the car had committed it. The situation was a sudden, unanticipated development. Suppose the officer had arrested these men upon belief that they had committed a housebreaking, but the legal lights in charge of preparing indictments had decided the offense was robbery; or suppose later information had disclosed a murder. Would the arrest have been invalid? Of course not. So to hold would make a mockery of the Supreme Court’s admonition to us that probable cause is a matter of practicalities, not of technicalities.”

In the instant case we believe that there was probable cause for the arresting officer to believe that a felony had been committed and that the appellant committed it. Assault with intent to murder is a felony. Md. Code (1967 Repl. VoL), Art. 27, § 12. Intent is the essence of that felony and if the intent was carried out, the resulting crime would have had to be either first or second degree murder. Marks v. State, 230 Md. 108, 112. But a specific intent to murder is not a necessary element for conviction of assault with intent to murder. It is sufficient if there was an intention to commit grievous bodily harm. Lawrence v. State, 2 Md. App. 736, 738.

“The essential distinction between murder and manslaughter is the presence or absence of malice, which is the intentional doing of a wrongful act to another without legal excuse or justification. The inference of malice may be drawn from the fact of the use of a deadly weapon directed to a vital part of the body. Chisley v. State, 202 Md. 87, 95 A. 2d 577. The law presumes that in the absence of mitigation, all homicides are committed with malice and constitute murder. This presumption also applies to cases of assault with intent to commit murder.” Tate v. State, 236 Md. 312, 317.

The arresting officer saw a woman lying motionless on the porch bleeding from the head. He received information that the appellant had gone upstairs in the premises where the victim lived. He observed that the appellant, who was on the scene, had “a good deal of blood * * * on his hands, forehead, edge of his hair and also his shirt and trousers.” There were reasonable grounds that the appellant’s explanation of the presence of the blood on his person was untrue from information received from the hospital. Then the appellant said he went to the room of the victim and saw her lying in bed with her back to him. Although he did not know what came over him and made him do it, he admitted that he struck her in the head with a hammer. The admissions were not the result of a custodial interrogation of the appellant, who was accosted on the street by the officer and merely questioned as to his identity and actions. Morgan v. State, 2 Md. App. 440; Guadio and Bucci v. State, 1 Md. App. 455. The observations of the officer and the admissions of the appellant constituted probable cause to believe that the appellant had committed the felony of assault with intent to murder. We hold that the arrest was valid.

The finding that the arrest was valid would appear to dispose of the contentions of the appellant as they are predicated upon the illegality of the arrest. But, despite the legality of the arrest, if the obtaining of the hair and saliva specimens was in violation of his constitutional rights, the question is whether evidence regarding them would have been properly admissible.

We think it clear that the constitutional right of the appellant against self-incrimination was not violated by the taking of the specimens. “[T]he privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” Schmerber v. California, 384 U. S. 757, 764; 86 S. Ct. 1826, 1832. Schmerber held that blood test evidence, although an incriminating product of compulsion, was neither an accused’s testimony nor evidence relating to some communicative act or writing by the accused and was not inadmissible on privilege grounds. 384 U. S. 765; 86 S. Ct. 1833. And it recognized that the privilege “offers no protection against compulsion to submit to fingerprinting, photographing or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” 384 U. S. 764, 86 S. Ct. 1832. See also United States v. Wade, 388 U. S. 218, 222, 87 S. Ct. 1926, 1930.

The question whether the taking of the hair and saliva specimens violated the Fourth Amendment guarantee against unreasonable searches and seizures presents a more difficult issue. In considering the question we must look to that part of the opinion in Schmerber v. California, supra, dealing with the search and seizure claim there made. 384 U. S. 766-772. Rejecting the claim that the self-incrimination clause of the Fifth Amendment requires the human body in all circumstances to be held inviolate against state expeditions seeking evidence of crime, the Court stated that such testing procedures as the drawing of a blood sample from the accused for the purpose of making a chemical analysis to determine the percentage by weight of alcohol in his blood “plainly constitute searches of ‘persons,’ and depend antecedently upon seizures of ‘persons,’ within the meaning of that (the Fourth) Amendment.” It would appear that the Court deemed such testing procedures to be searches because they “invade another’s body in search of evidence of guilt” and are “searches involving intrusions beyond the body’s surface”' — “intrusions into the human body”. But it said that the Fourth Amendment’s proper function is not to constrain against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. In this frame of reference it found that early cases suggest that the police have a right to search the person of the accused when legally arrested, to discover and seize the fruits or evidence of the crime. “The suggestion of these cases apparently rests on two factors — first, there may be more immediate danger of concealed weapons or of destruction of evidence under the direct control of the accused * * *; second, once a search of the arrested person for weapons is permitted, it would be both impractical and unnecessary to enforcement of the Fourth Amendment’s purpose to attempt to confine the search to those objects alone.” 384 U. S. 769. But it found that these considerations, whatever their validity in general, have little application with respect to searches involving intrusions beyond the body’s surface. Therefore for evidence found by such a compulsory search to be admissible:

1) the search must be under authority of a search warrant based on probable cause (“a clear indication that in fact such evidence will be found”), unless the authorities might reasonably have believed that an emergency existed in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence; and
2) the test to be performed on the specimens obtained must be a reasonable one; and
3) the search must be performed in a reasonable manner.

The Court in Schmerber said, “Because we are dealing with intrusions into the human body rather than with state interference with property relationships or private papers — ‘houses, papers and effects’ — we write on a clean slate.” 384 U. S. 767-768. The cases in State jurisdictions, preceding Schmerber, dealing with a compulsory physical examination or test, have not considered the constitutional aspects of the question as they are considered in Schmerber. Some simply stated that no search and seizure was involved; others turned on the rule in effect prior to Mapp v. Ohio, 367 U. S. 643 — that if the evidence offered is otherwise competent, it will be accepted without inquiry into its source; others were dependent upon the degree of offense to conscience or sense of justice, represented, in the circumstances, by the procedure followed.

In any event we need not decide whether the obtaining of the hair and saliva specimens in the instant case was a search for evidence of guilt by the invasion of the body — a search “involving intrusions beyond the body’s surface.” The lower court found that the obtaining of the specimens was with the consent of the appellant. There was before the lower court the testimony of Lt. Kalnoske that the appellant was vague as to his activities on 18 August 1961 when he saw him about 8:00 A.M. on 27 August. The appellant was not in his cell but at the fingerprint counter in a hallway. Kalnoske told him that they wanted to obtain hair and saliva samples from him. The only response of the appellant was “something to the effect ‘were we trying to pin the murder on him.’ ” Then Kalnoske explained to the appellant that they had some evidence from the murder and that a comparison would be made of the samples. He showed the appellant how to give the saliva sample, by “dropping a few drops of saliva on the paper” and the appellant, following that example, submitted the saliva sample. Kalnoske then selected hairs from the top, back and sides of the appellant’s head and cut them off. Kalnoske said the appellant did not object to-the police obtaining the samples, that neither he nor anyone present “exercised upon the body or person” of the appellant “any violence,” or threatened him in any manner, nor made any promises to him. At the time the samples were obtained the appellant was standing, no one was holding him and he was not handcuffed. He had walked from his cell upon request, “he wasn’t removed physically.” Corporal Moreland, the only other person present when the specimens were obtained, testified that the appellant “willingly let Lt. Kalnoske take the hair samples and gave us the saliva sample.” He could not recall the exact words which the appellant used to indicate his willingness but “there was permission given by John Emory Simms to go ahead and take the hair samples, and he would give us the saliva sample.” Moreland said that neither he nor Kalnoske or any «other law enforcement officer threatened the appellant, nor made him any promises nor made any statements to induce him to give the specimens. The defense did not proffer any evidence on the matter. It appears from the record that at the trial objection to the evidence relating to the obtaining of the specimens was based on the illegality of the arrest and not on the alleged consent of the appellant. The appellant argues on appeal that by the totality of the circumstances, including that he was not informed that he was under no obligation to give the specimens or that they could be used to incriminate him, prohibits a conclusion that he voluntarily surrendered them. But as we have said, the privilege against self-incrimination is not applicable and so Miranda v. Arizona, 384 U. S. 436, is not controlling. Morgan v. State, 2 Md. App. 440. A search otherwise unlawful may be made with the voluntary consent of the accused. Randolph v. State, 1 Md. App. 441. The undisputed evidence before the lower court was that the appellant gave permission to the police to obtain the specimens and willingly permitted them to be obtained. See Anderson v. State, 237 Md. 45, 49. We think the question of the consent of the appellant was initially one of fact for the lower court to resolve and from the evidence before it we feel that the finding was not clearly erroneous. Md. Rules, 1086. See United States v. Richardson, 388 F. 2d 842 ( 6th Cir. 1968); United States v. Page, 302 F. 2d 81 (9th Cir. 1962). Cf. Wilson v. State, 239 Md. 245.

As we have found that the arrest of the appellant was valid mid that he consented to the obtaining of the hair and saliva specimens, the lower court did not err, as contended, in refusing to instruct the jury on the illegality of the arrest, in admitting testimony as to the specimens and in admitting the confessions of the accused.

Two documents were submitted to this Court by the appellant in proper person. One was entitled “Supplement to Appellant Brief” and the other was entitled “Petition for Writ of Habeas Corpus (Dismiss Indictment)” which the appellant requested by letter be added to his direct appeal as a “supplemental brief.” There is no provision in this jurisdiction for the filing of a supplemental brief. The points raised in the documents submitted by the appellant are not properly before us and, except as to those also raised in the appellant’s brief and hereinbefore disposed of, we do not consider them. Fabian v. State, 3 Md. App. 270; Crossland v. State, 2 Md. App. 722.

Judgment affirmed.

      . The murder was alleged to have been committed on 18 August 1961 in Anne Arundel County. The prior history of the case is not relevant to the issues raised on this appeal but it appears that the case was first removed to Montgomery County and then to Washington County where the appellant was tried and convicted at a court trial with three judges presiding. An appeal was noted and while it was pending the appellant elected to avail himself of the relief afforded by the rulings in Schowgurow v. State, 340 Md. 121. He was again indicted on 10 February 1966 and the case was removed to Harford County where it came to trial on 3 May 1966, resulting in the above judgment.

      . An F.B.I. expert on the subject testified that persons are secretors or non-secretors. A secretor secretes into his semen, into 'his saliva, into his perspiration and into his tears the same blood factors which he possesses in his blood stream. Thus a person belonging to Blood Group “A,” if a secretor, will secrete group “A” blood.

      . At this point counsel for the appellant objected and moved to strike Forte’s testimony. Counsel had made objection shortly after Forte began to testify at which time the court ruled the objection was premature but that it would entertain a motion to strike if the State did not show that the testimony was relevant. Upon the •subsequent objection Forte’s testimony was resumed out of the presence of the jury.

      . The lower court found that the arrest was illegal “on the basis that no crime was committed, or was being committed in the .presence of the arresting officer, no misdemeanor.”

      . A certified copy of the warrant of arrest issued for the assault by the appellant on Grace Brown was admitted with regard to the consideration of the legality of the arrest. It was not alleged that it was invalid on its face and had it been issued prior to the time the hair and saliva specimens were obtained from the appellant he would have then been in lawful custody under authority of the warrant. However, there is no evidence as to when it was issued, although the record contains a comment of defense counsel that it was issued 30 hours after the arrest which would be subsequent to the time the specimens were obtained.

      . This is the rule in Maryland. McRae v. State, 3 Md. App. 388; Hutchinson v. State, 1 Md. App. 362. Although we have found that the arrest of the appellant was valid and he was therefore legally confined, the obtaining of the specimens was in no event an incident of the antecedent legal seizure of his person. The specimens were taken some six hours after the arrest and the evidence sought was specifically with relation to a crime other than the one for which he was arrested.

      . In Schmerber the Court found that since alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system, there was no time to seek out a magistrate and secure a warrant.

      . Apparently the Court meant that the test should be able reasonably to provide the fact sought; i.e., in Schmerber, the degree to which the accused was under the influence of alcohol. It said that extraction of blood samples for testing is a highly effective means for such determination and that the blood test procedure has become routine in our everyday life. It did not decide whether, if an accused preferred other means of testing, such as the “breathalyzer test”, on grounds of fear, concern for health or religious scruple, his wishes would have to be respected.

      . In Schmerber the blood was taken by a physician in a hospital environment according to acceptable medical practices. The Court said it was not presented with the serious questions which would arise if a search involving medical technique, even of the most rudimentory sort, was made by other than medical personnel or other than in a medical environment — as, for example, by police in the privacy of the stationhouse.

      . In Davis v. State, 189 Md. 640, finding that the question of how evidence is obtained is collateral to the issue of guilt or innocence of the accused, the Court held that pertinent evidence, no matter how obtained, will be admitted, except as modified as to misdemeanors by statute. In this context the Court said, “There is no substantial difference between obtaining a specimen of blood from an accused and obtaining his fingerprints, or physical property, the possession of which by him is a pertinent question at issue in a felony charge against him.” p. 646.

      . See Annotation, 25 A.L.R. 2d 1407; Annotation, 16 L. E. 2d 1338.

      . However, we do not think that the compelling of an accused to submit to fingerprinting, photographing or measurements, to write or speak for identification, to appear at a line-up, to walk, to assume a stance or to make a particular gesture are within the ambit of Schmerber. We think it clear that such compulsions, in themselves, do not constitute a violation of the Fourth Amendment, and that Schmerber does not compel us to so construe them. It has been the law of this State since 1909 that the police may-fingerprint, photograph and measure one held in legal custody as a proper exercise of routine police procedure. Hall v. State, 233 Md. 378; Downs v. Swann, 111 Md. 53.

      . Kalnoske said he was not sure whether he said “We’d like to get the samples” but he may have used those words.


text:
    EUGENE ANTHONY GRAY v. STATE OF MARYLAND
    [No. 232,
    September Term, 1967.]

      Decided May 16, 1968.

    The cause was argued before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      Morris D. Kaplan for appellant.

      Alfred J. O’Perrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Hoivard L. Cardin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

On January 30, 1967, the appellant, Eugene Anthony Gray,, was convicted of murder in the second degree, in the Criminal Court of Baltimore, Judge Albert L. Sklar presiding, without a jury, and sentenced to fifteen years imprisonment.

Appellant raises two contentions on appeal:

1. That the trial court erred in refusing to grant the appellant’s Motions for Verdict of Acquittal at the end of the State’s case and at the conclusion of the entire case.
2. That the trial court was clearly erroneous in disregarding the lack of legal sufficiency in the evidence of the case.

The evidence adduced at the trial established that one Joseph Page was shot five times, one frontal wound in his leg and four-rear entries into his neck, chest and back, -while involved in an altercation with the appellant. The aforementioned altercation-occurred on May 30, 1966, at approximately 1:30 a.m., at North Franklintown Road, Baltimore, Maryland. Mrs. Frances Page, the deceased’s wife, testified that the deceased had arrived home at approximately 1:00 a.m. and expressed his displeasure with appellant’s failure to wear a shirt while visiting her daughter and subsequently went upstairs, ostensibly to bed, returning about ten minutes later to pick up the appellant’s shirt, throwing same at him, stating, “don’t ever let me catch you in my home again this way.” She further testified that, shortly thereafter, the record player in the basement began playing improperly and her daughter, Patricia Bailey, was on her way to correct it when stopped by the deceased. Appellant then came from the living room and stood behind Patricia Bailey, facing the deceased, and “requested that he could get his hat and coat so that he might leave,” to which the deceased replied, “that depends on how bad you want it,” and with that the shooting began. Her testimony further set forth that she had not seen the actual shooting, but had observed, earlier in the evening, that the appellant possessed a gun; however, she did not see her husband with a gun, although she knew he possessed one on the premises and that the gun found at the top of the cellar steps was that gun.

Patricia Bailey, an eye-witness to the actual shooting, gave testimony substantiating her mother’s testimony regarding those matters preliminary to the actual shooting. In addition thereto, she further testified that when the deceased, her stepfather, blocked her passage, she believed he was going to strike her, so she jumped back. At that point, the appellant made the aforenoted request and the exchange occurred which culminated in the shooting death of the deceased. Her testimony added that the deceased had arched his hand “as though he was going for his back pocket” when appellant fired a shot and the deceased then “turned to run” and “ran down the basement,” at which time the appellant “ran to the top of the steps and continued shooting” down the stairs. Thereafter, appellant fled from the house with his gun.

The appellant testified he had been visiting Patricia Bailey and became overheated while dancing and, with her permission, removed his shirt. His testimony regarding those matters leading up to the shooting was substantially the same as the witnesses Page and Bailey. With respect to the actual shooting, he testified that the deceased had “put his hand in his pocket” and that he “seen” the handle of the deceased’s gun as he withdrew it. He further stressed, with respect to the gun, that the deceased then “pulled it all the way out and pointed it at me” and “that is when I kept on shooting” and emptied his gun at the deceased while “he was still running down the steps.” Appellant further testified that he fired only four shots, all of which were fired “aiming low at the steps.”

At the conclusion of the State’s case, the appellant made a Motion for Judgment of Acquittal, which was denied by the trial court. Subsequent thereto, the appellant took the stand in his own behalf and thus withdrew his motion. Maryland Rule 755 b; Brooks v. State, 3 Md. App. 485; Lucas v. State, 2 Md. App. 590, 592, 235 A. 2d 780, 781 (1968); Loker v. State, 2 Md. App. 1, 19, 233 A. 2d 342, 354 (1967); McGlothlin v. State, 1 Md. App. 256, 229 A. 2d 428, 430 (1967).

In reviewing the lower court’s denial of a Motion for Judgment of Acquittal, made at the conclusion of the case, the review becomes a determination of the sufficiency of the evidence. Brooks v. State, supra. Therefore, appellant’s urging that the lower court erred in not granting his renewed Motion for Judgment of Acquittal at the close of the entire case is redundant and merges with his second contention that the evidence was not sufficient to sustain the conviction. Lucas v. State, supra; McGlothlin v. State, supra, 261.

The applicable test in reaching a determination of the sufficiency of the evidence in a non-jury case is whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. Speaks v. State, 3 Md. App. 371, 379, 239 A. 2d 600, 605 (1968); Anderson and Washington v. State, 3 Md. App. 362, 369, 239 A. 2d 579, 583 (1968); Montague v. State, 3 Md. App. 66, 72, 237 A. 2d 816, 820 (1968). In non-jury trials the weight of the evidence and the credibility of the witnesses rest within the determination of the trial judge. McRae v. State, 3 Md. App. 388, 393, 293 A. 2d 607, 610 (1968). Anderson and Washington v. State, supra, 369; Lucas v. State, supra, 593. Furthermore, in non-jury trials, the trial court in performing its duty of judging the credibility of witnesses may disbelieve the exculpatory statements made by the defendant. Anderson and Washington v. State, supra, 369.

The thrust of the appellant’s argument is that he acted in self-defense and that all of the evidence clearly substantiated his urging. However, it is clear that the burden of proving self-defense rested upon the appellant. Davis v. State, 237 Md. 97, 103, 205 A. 2d 254, 258 (1964).

As was stated in Tipton v. State, 1 Md. App. 556, 232 A. 2d 289, 291 (1967) at page 560:

“In order to justify an assault on the basis of self-defense, the accused must have had reasonable grounds to believe, and have in fact believed, himself to be in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant. The trier of facts must determine whether the accused was justified in meeting force with force. If justification is found to have existed, the force used against the assailant must not have been unreasonable or excessive, i.e., the defender must not have used more force than the exigency reasonably demanded.”

And in Ware v. State, 3 Md. App. 62, 65, 237 A. 2d 526, 528 (1968), we again noted that:

“The law is clear that although a person may defend himself, even to the extent of taking life to repel the attack of an aggressor, it is equally well settled that he cannot use more force than is necessary.”

Assuming arguendo the appellant’s urging that the deceased was the aggressor, the appellant’s subsequent actions were inconsistent with his contention of self-defense. Here the evidence clearly established that after being struck by the first shot fired by the appellant, the deceased turned and fled down his cellar stairs, apparently dropping his gun in the process. At this juncture, the appellant pressed his pursuit of the fleeing deceased by firing four shots into his back, patently exerting force of an unreasonable and excessive nature under the instant circumstances.

This Court cannot reverse a judgment of the lower court unless it is shown that there was no legally sufficient evidence, or proper inferences therefrom, from which that court could find the accused guilty beyond a reasonable doubt. Anderson and Washington v. State, supra, 371. Such prerequisite showing was not established in this case and we certainly cannot say that the judgment of the lower court was clearly erroneous. Maryland Rule 1086; Speaks v. State, supra, 379; Anderson and Washington v. State, supra, 371; Lucas v. State, supra, 593.

Judgment affirmed.


author: Pee Cueiam.

text:
    WALTER ALEXANDER GUNTHER v. STATE OF MARYLAND
    [No. 236,
    September Term, 1967.]

      Decided May 16, 1968.

    The cause was submitted to Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      Leonard A. Briscoe for appellant.

      Henry J. Frank el, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan,

      Jr., State’s Attorney for Baltimore City, and Charles A. Herndon, Jr., Assistant State’s Attorney for Baltimore' City, on the brief, for appellee.
   Pee Cueiam.

On August 23, 1967, appellant, Walter Alexander Gunther, was convicted of assault and battery under a three-count indictment charging attempted robbery with a dangerous and deadly weapon, assault with intent to rob, and assault and battery, in the Criminal Court of Baltimore by Judge Meyer M. Cardin, sitting without a jury. He was sentenced to serve eighteen months under the jurisdiction of the Department of Correction.

Appellant raises the following questions on appeal:

1. That the court erred in permitting the State’s attorney to read into the record and for the court to hear the defendant’s conviction for a matter which did not affect his credibility, notwithstanding that appellant had already replied in the affirmative when asked if he had ever been convicted of a crime.
2. That the evidence in this case was insufficient to sustain the conviction.

The record discloses that on May 9, 1967, at approximately 11:00 p.m., the prosecuting witness reported to the police that at about 6 or 7 o’clock p.m. on that date, while walking in an easterly direction on North Avenue, at the corner of Poplar Grove Street, he was accosted by the appellant. The witness testified that appellant asked him for some money for a drink; that after being refused, he attempted to search the witness’ pockets, and a struggle ensued; and that appellant cut the witness in the face with a screwdriver. There was testimony that the prosecuting witness and appellant knew each other from grammar school.

Appellant presented an alibi defense to the effect that he was not at the scene of the alleged crime, but was taking care of his invalid grandfather. His mother and grandmother also testified to substantiate the alibi.

Further evidence, elicited from the investigating officer, showed that the prosecuting witness told him the struggle occurred at 10:30 p.m., rather than at 6 or 7 o’clock p.m. as he had previously testified. However, the officer related that the rest of his report coincided with the prosecuting witness’ testimony.

Appellant contends it was improper to permit the State’s attorney to ask him, over defense counsel’s objection, if he was ever convicted of malicious destruction of property. The thrust of this argument is that this particular conviction is not related to his credibility. We find no merit in this contention. In Huber v. State, 2 Md. App. 245, citing Linkins v. State, 202 Md. 212, at 220, we stated that:

“It has been held in this State that while evidence of defendant’s prior convictions of crimes, other than that charged, need not be restricted to infamous crimes or crimes involving moral turpitude to be admissible, such convictions should be for law violations which may have some tendency to impeach defendant’s credibility as a witness. No rigid classification of crimes seems possible. The court must exercise discretion and its decision will not be interfered with on appeal, except when the evidence is so clearly irrelevant that its admission could not be said to be within the discretion of the trial court.” (Emphasis supplied).

The fear of admitting details of convictions for prior crimes stems from its potential prejudicial influence over a jury. However, this fear is not justified in a non-jury trial where the court, by its wisdom and experience, is expected to be beyond the influence of such evidence. We are unable to conclude that the admission of appellant’s prior conviction for malicious destruction of property was such an abuse of discretion and so clearly irrelevant as to constitute reversible error.

Appellant next contends that the State’s case is so replete with inconsistencies as to constitute insufficient evidence to sustain the conviction. He specifically alleges that the prosecuting witness’ testimony is “so contradictory as to lack the necessary probative force to convict.” Several discrepancies are alluded to: the different times the alleged assault took place, as stated by the prosecuting witness and the investigating officer; the inability of the State’s witness to recall whether he had ever been convicted of any crime; the fact that this witness could not recall whether the filling stations, located at the scene of the incident, were open or closed, though it was “well known” they were 24-hour stations; and that the witness continued on his own business for some time, after receiving the cut, before going to the hospital. Appellant points to Kucharcsyk v. State, 235 Md. 334, 338, where the Court of Appeals stated:

“* * * if any witness’s testimony is itself so contradictory that it has no probative force, a jury cannot be invited to speculate about it or to select one or another contradictory statement as the basis of a verdict.”

While we see no distinction in the Kucharcsyk rationale between jury and non-jury cases, we find here no such inconsistency as was present in that case. In non-jury cases the judgment of the lower court will not be set aside on the evidence unless it appears to be clearly erroneous and due regard must be given to the opportunity of the lower court to judge the credibility of the witnesses. Maryland Rule 1086; Bury v. State, 2 Md. App. 674, 677. It is not the function of this Court to determine whether, on the evidence, we might have reached a different conclusion, but rather to determine from the evidence whether there was legally sufficient evidence from which the trial judge could be convinced beyond a reasonable doubt of the accused’s guilt. Bury v. State, supra; Johnson v. State, 2 Md. App. 486. Furthermore, we have held that a victim’s positive identification alone, of the defendant, if believed, is sufficient to support a conviction. Jones v. State, 2 Md. App. 356, 358; Reed, v. State, 1 Md. App. 662.

Moreover, with regard to appellant’s alibi defense, the trial court was under no obligation to believe his denials or explanations. Logan v. State, 1 Md. App. 213. The trial judge had the benefit of observing the demeanor of the witnesses, including the appellant; he was exposed to the flavor and atmosphere of the trial, a benefit which is not accorded us by the written record. See Johnson v. State, supra. Giving due regard to the trial court to judge the credibility of the witnesses, we cannot say that appellant’s conviction on the evidence was clearly erroneous.

Judgment affirmed.


author: Thompson, J.,

text:
    JOHN PRESTON POFF v. STATE OF MARYLAND
    [No. 276,
    September Term, 1967.]

      Decided May 16, 1968.

    The cause was argued before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      John J. Mitchell for appellant.

      Bernard L. Gilbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Benjamin Wolman, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

John Preston Poff, the appellant, was convicted of storehouse breaking in the Circuit Court for Prince George’s County, Judge Roscoe H. Parker presiding with a jury. Poff complains that the conviction for storehouse breaking instead of breaking a “dwelling” was contrary to law; that he was subject of a police entrapment; that he was prejudiced in the eyes of the jury by the arrest of his wife in the courtroom while he was being tried, and by the resulting colloquy between the judge and himself.

In August of 1966 Detective James Fitzpatrick of the Prince George’s County Police made arrangements to “lease,” for a few days, an apartment in the Glassmanor apartment project from the resident manager, Elmer Purvins. Fitzpatrick and his partner, Detective Richard Shaner, then moved some guns, a television set and a few other items into the furnished apartment. The two policemen occupied the apartment for three days. They arrived early in the morning and left in the evening of each day. While using the apartment the officers ate hamburgers and cookies and occasionally slept there during the day. On the third day Fitzpatrick placed a call to the company which owned the furniture and he asked for a man to come to the apartment and repair their rented furniture. Subsequently, one Mileski arrived to make the repairs. After Mileski started a conversation about the guns Fitzpatrick told him that he would soon be leaving and would be out all afternoon. Mileski left, but before sunset he returned with the appellant, Poff. They knocked on the door several times but when there was no answer, they forcibly opened it. When they entered the apartment, the policemen, previously concealed, identified themselves and in the resultant turmoil Poff and Mileski were shot by the policemen who were attempting to arrest them. Poff was indicted for storehouse breaking and house breaking. He was found guilty only of the former charge.

Poff first complains that his conviction for storehouse breaking is contrary to law in that he did not break a storehouse but a dwelling; and that his motion for acquittal on the charge of breaking a storehouse should have been granted.

In Hackley v. State, 237 Md. 566, 207 A. 2d 475 the Court of Appeals of Maryland discussed the meaning of “storehouse” as used in Md. Code, Art. 27, § 32 (Breaking with intent to steal more than $100.00) which is the statute involved in the current indictment; as used in § 33 (Breaking and stealing more than $5.00) ; and as used in § 342 (Breaking with intent to steal less than $100.00, or stealing less than $5.00), concluding that the term “storehouse” should be given the same meaning in all sections. The Court suggested that the three sections covered all buildings, other than dwelling houses citing several earlier Maryland cases on the subject.

In Buckley v. State, 2 Md. App. 508, 235 A. 2d 754, this court construing § 32, supra held that a “warehouse” as used in an indictment thereunder included a fraternity house being used as a meeting and recreational facility. We said in Buckley v. State, supra, 2 Md. App. at page 511: “[E]ven though the building was originally designed as a dwelling, in fact, at the time of the alleged breaking it was being used exclusively as a meeting and recreational facility by the fraternal organization.” To the same effect see Perkins, Criminal Law, Ch. 3, § 1 at 159, 2 Wharton, Criminal Law and Procedure, § 423 at 45.

The present appeal will, therefore, be determined by whether or not the apartment at the time of the offense was being used as a “dwelling house” or as a place for storage. The facts show that the apartment was vacant at the time the officers “rented” it for the obvious purpose of setting a trap for Mileski. Although they held it out to Mileski as a “dwelling” we have no difficulty in concluding that, in fact, it was not a “dwelling” but simply a place in which furniture was stored pending its rental by a new tenant.

The test as to whether or not a building is a “dwelling house” is whether or not it is used regularly as a place to sleep. No building becomes a “dwelling” by reason of the fact that someone may sleep there on rare occasions or take an occasional nap there, as in the current appeal. Perkins, Criminal Law, Ch. 3, § 1 C (1), at 158, 2 Wharton, Criminal Law and Procedure, § 433 at 45, 13 Am. Jur. 2d Burglary § 3 at 321, Clark and Marshall, Law of Crimes, § 13.01 at 874.

We conclude, therefore, that Poff was properly convicted of breaking a “storehouse”.

Poff’s second contention is that his motion to acquit should have been granted because of entrapment by the police officers. Entrapment by police presupposes that the police officers solicited or procured the commission of a crime. The mere fact that the officers laid a trap and provided Poff with an opportunity to commit a crime does not meet this test. Maryland authorities have been collected by this court in Dolan v. State, 1 Md. App. 292, 229 A. 2d 443 and in Jarrett v. State, 1 Md. App. 448, 230 A. 2d 683.

Poff next contends that his case was prejudiced in the eyes of the jury by the arrest of his wife in the courtroom, and by a colloquy between the trial judge and the appellant in the jury’s presence. A reading of the record discloses that although the arrest occurred in the courtroom the jury was not aware of it. Although Poff alleges that his case was prejudiced by the arrest of his wife, who was a witness, there is no suggestion that he was in any way deprived of her testimony. We do not see how the jury could be prejudiced by something of which they were not aware.

Poff alleges that a verbal exchange concerning the arrest prejudiced the jury. During a bench conference, the following was overheard by the jury:

“THE COURT: This man over next to the man going out, get him, Mr. Sheriff. Hold him.
“JOHN PRESTON POFF: Your Honor, this is too much, you know. No, this is not even fair to my case in this.
“THE COURT: Mr. Poff, you might be guilty of contempt of Court if you don’t sit down.
“JOHN PRESTON POFF: Can I go to the bathroom, please ?
“THE COURT: No. You sit where you are.
“I will take a five-minute recess. Bring that man in here, in chambers.”

Out of the presence of the jury it was ascertained that the court observed a spectator in the courtroom attemping to give signals-to Poff that his wife had been arrested by a deputy sheriff who' did not know that she was a witness in the case. Immediately after the jury was returned to the courtroom, the court made the following statement:

“THE COURT: Members of the jury, by way of explanation to explain what happened a moment ago, the Court observed someone in this courtroom making signals to the defendant in this case and obviously trying to communicate with the defendant while trial was in progress. That is against the law and against the proper decorum of court. For that reason we had to' investigate at the time what was going on.
“But you are not to pay any attention to that so far as your consideration of this case. Put it out of your mind so far as determining whether or not this defendant is guilty. He has done nothing in regard to this incident. It was only a spectator in this courtroom.”

If there were any prejudice to Poff’s position we think the prompt instruction of the trial court removed it. See Carroll v. State, 3 Md. App, 50, 53, 237 A. 2d 535, Reeves v. State, 3 Md. App. 195, 202, 238 A. 2d 307.

Judgment affirmed.