text:
    BLAIR EUGENE SHELTON v. WARDEN, MARYLAND PENITENTIARY
    [No. 111,
    September Term, 1967.]

      Decided June 13, 1968.

    Before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.
   Per Curiam.

This is an application for leave to appeal from an order of September 15, 1967 by Judge Philip H. Dorsey, sitting in the Circuit Court for Prince George’s County, denying the petitioner’s application for relief under the Uniform Post Conviction Procedure Act.

On January 17, 1967 the petitioner was convicted of two counts of storehousebreaking and two counts of larceny by a jury, before Judge Roscoe H. Parker, and sentenced to ten years in the Maryland Penitentiary on each count, the sentences to run concurrently.

Prior to filing the subject petition, the petitioner filed a notice of appeal from his conviction contesting the legality of his arrest and the admissibility of evidence seized incident thereto; the sufficiency of the evidence; and the propriety of the trial judge’s ruling disallowing his request to summon certain witnesses to testify on his behalf. On March 20, 1968 we affirmed the judgment of the lower court. See Shelton v. State, 3 Md. App. 394.

After the filing of the subject petition, counsel was appointed and an evidentiary hearing was held on August 30, 1967 before Judge Dorsey. The petitioner’s present application for leave to appeal sets forth two contentions:

1. That the trial court failed to make a finding on all the allegations raised in petitioner’s petition for post conviction relief.

2. That the trial court erred in ruling that court-appointed counsel was only using trial tactics when he refused to call witnesses requested by the petitioner.

At the post conviction hearing Judge Dorsey only considered three of petitioner’s contentions, having been advised by counsel for the petitioner that the other allegations would not be pressed. It is true that under Rule BK4S b it is incumbent upon the judge conducting the post conviction hearing to make findings of facts upon all contentions raised by the petitioner. Hunt v. Warden, 243 Md. 691; Szukiewics v. Warden, 1 Md. App. 61. However, we have held that it is the responsibility of the petitioner and his counsel to submit evidence in support of the contentions, and the failure to meet this obligation may well result, as here, in the hearing judge concluding that the contentions were deliberately abandoned for lack of factual evidence to support them. See Szukiewics v. Warden, supra, at p. 63. In the instant case Judge Dorsey’s statement that the petitioner did not wish to press all of his contentions is uncontroverted by the record, and other than petitioner’s bare statement, there is nothing before us to dissuade us from the conclusion reached by Judge Dorsey that all but three of petitioner’s contentions were abandoned.

Petitioner’s second contention was “finally litigated” within the meaning of the Maryland Code (1967 Repl. Vol.), Article 27, Section 645A (b) and (d), in Shelton v. State, supra, and clearly cannot be raised again. Dailey v. Warden, 3 Md. App. 425; Tiller v. Warden, 1 Md. App. 286.

In a supplement to his application for leave to appeal, filed May 16, 1968, the applicant raised an additional issue, viz., that his ten-year sentence was illegal since the trial judge did not give him credit for two years which he served under an earlier conviction for the same offense which he elected to have voided under Schowgurow v. State, 240 Md. 121. He contends that he is thus being required to serve a total sentence of twelve years when the maximum for the offense charged under the statute is ten years.

As this issue was not before the post conviction hearing judge, it is not properly before us for review. We note, however, that applicant filed a petition for correction of his sentence on September 13, 1967, this being several weeks after the post conviction hearing judge’s opinion denying relief under the Act. The docket entries before us indicate that applicant’s petition for correction of sentence was denied by Judge Roscoe Parker on October 26, 1967.

While on the state of the record before us, we cannot consider applicant’s contention that his sentence was illegal, in Reeves v. State, 3 Md. App. 195, decided on February 19, 1968, we held that, under certain circumstances, a prisoner may be entitled to credit on a sentence for time served under an original sentence which had been voided under Schowgurow v. State, supra. Whether Reeves is applicable in applicant’s case may be considered by a subsequent petition filed under the Act, or by another petition to correct an illegal sentence under Maryland Rule 764 a.

Application denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CHARLES IRVIN DANIELS v. DIRECTOR, PATUXENT INSTITUTION
    [No. 135,
    September Term, 1967.]

      Decided June 13, 1968.

    Before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.
   Per Curiam.

This is an application for leave to appeal from an order of Judge Joseph R. Byrnes, sitting in the Criminal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procedure Act.

The application for leave to appeal does not state any reasons why the order of the lower court should be reversed or modified and could be denied for this reason. Md. Rule, BK46 b; Mauldin v. Warden, 1 Md. App. 38. In any event the application is denied for the reasons set forth by Judge Byrnes in the memorandum accompanying the order. We note, however, that the test of the competency of counsel now is not whether the representation was so deficient as to make a farce out of the trial, as stated in Bryant v. Warden, 235 Md. 658, but whether the defendant has been afforded adequate and effective representation. Galloway v. Warden, 2 Md. App. 467. However, it is still the rule, as stated in Bryant, that mere errors in trial tactics do not amount to inadequate and ineffective representation. Briscoe v. Warden, 3 Md. App. 182. We agree with the lower court that the allegations as to incompetency of counsel were not sufficient to show that the applicant was denied adequate and effective representation.

Application denied.


author: Thompson, J.,

text:
    DANIEL AMBROSE WALTER and JACK DEMPSEY MAUDE v. STATE OF MARYLAND
    [No. 151,
    September Term, 1967.]

      Decided June 17, 1968.

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

      James J. Casey, with whom was Andrew C. Yslas on the brief, for appellant Walter; Steny H. Hoyer, with whom was Thomas B. Yewell on the brief, for appellant Maude.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince Georges County, and
      Robert J. Woods, Assistant State’s Attorney for Prince George’s County, on the, brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Daniel Ambrose Walter and Jack Dempsey Maude, the appellants, were both convicted of grand larceny by the Circuit Court for Prince George’s County, Judge Ralph W. Powers presiding without a jury. Walter was given a three year sentence and Maude a four year sentence. They allege error in the trial court’s refusal to continue the case in order to obtain new counsel, in denying their rights to withdraw their waiver of a jury trial, and in the denial of their motions for a change of venue. In view of the contentions it will be unnecessary to give a statement of the facts.

On March 23, 1967 at the time both appellants were arraigned, their privately retained counsel entered his appearance and each elected a court trial. The trial was set for April 5th, but prior to that time it was continued until April 24th at the request of the appellants’ counsel. The appellants were notified of the new trial date several days prior to April 5th. On the morning of the trial the appellants made an oral motion for a continuance for the purpose of obtaining new counsel. They alleged they could obtain new counsel within twenty-four hours. The record does not show whether or not the court was free to try a case the second day. The State’s Attorney objected to the postponement because he had a witness that had come from the State of Florida for the day of trial whereupon the court requested the reasons for the request which were set out as follows:

“THE COURT: Do you have anything to add ?
“Do you want to make that of record ? Because that is what it is based on, the action of the Court. We don’t usually grant continuances when the trial date has been set and parties have been notified and come up ready for trial with witnesses, and then ask for a continuance.
“Is there anything further that you would like to say?
“THE DEFENDANT MAUDE: It is just that—
“THE COURT: Speak up.
“THE DEFENDANT MAUDE: I can’t feel confident with him. That is all I can say.
“THE COURT: Is there anything you would like to say in connection with it, Walter ?
“THE DEFENDANT WALTER: About the same thing. I just don’t feel quite confident with the lawyer and I would like to change counsel.
“THE COURT: Why not? You engaged him as your attorney. He has been your attorney until this morning. Why didn’t you act any sooner than this ?
“THE DEFENDANT MAUDE: For one thing, we just found out a few more things this morning that just isn’t right.
“THE COURT: Just found out what?
“THE DEFENDANT MAUDE: We found out a few things this morning that just isn’t right.
“THE COURT: What are you talking about ?
“THE DEFENDANT MAUDE: Well, it is just that, you know, witnesses in the case, and stuff, and he don’t feel he should use them and we feel we should, and it is just a number of things. He just isn’t acting the way we would like him to act, that is all.
“THE COURT: Is there anything further ?
“THE DEFENDANT WALTER: No.”

It is elementary that a continuance is within the sound discretion of the trial court, Bright v. State, 1 Md. App. 657, 232 A. 2d 544. The appellants urge however the right to counsel is so fundamental that the action of the court deprived them of counsel. In Ungar v. Sarafite, 376 U. S. 575, 84 S. Ct. 841, 11 L. Ed. 2d 921, the Supreme Court of the United States considered the problem involving the denial of a continuance which allegedly deprived the accused of his right to engage counsel and at 376 U. S. 589, 84 S. Ct. 849 the Court said:

“The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama, 308 U. S. 444, 84 L. Ed. 377, 60 S. Ct. 321. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U. S. 3, 99 L. Ed. 4, 75 S. Ct. 1. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Nilva v. United States, 352 U. S. 385, 1 L. Ed. 2d 415, 77 S. Ct. 431; Torres v. United States, 270 F. 2d 252 (C. A. 9th Cir.); cf. United States v. Arlen, 252 E. 2d 491 (C. A. 2d Cir.).”

On the vague information furnished the court as to the reason for the continuance, we cannot say that the trial judge abused his discretion.

The appellants secondly contend that the court committed error in refusing, on the morning of the trial, their right to withdraw their waiver of a jury trial.

Maryland Rule 741 provides as follows:

“An accused may waive a jury trial and elect to be tried by the court. If an accused elects to be tried by the court the State may not elect a jury trial. An election to be tried by the court must be made before any evidence in the trial on the merits is taken unless otherwise provided by local rule of court. (Uniform Rule 34).”

The Local Rules of the Circuit Court for Prince George’s County, Chapter 700, Criminal Causes, Local Rule 702, Arraignment and Jury Election provides:

“a. Election by Defendant
At the time of arraignment under Maryland Rule 719, or within fifteen days thereafter, the defendant shall elect whether or not a jury trial is desired. If no election is made within that time it shall be conclusively presumed that the accused waives his right to a jury trial and elects to have the case tried by the Court. Thereafter, the case shall be assigned for trial in accordance with this election, b. Change in Election.
However, having regard to the status of the case with respect to assignment for trial, the Court may, in its discretion and for good cause shown, permit the accused to change his election as to the manner in which the case will be tried.”

We see no abuse of the court’s discretion in this case. Appellants waived the right to a jury trial one month prior to the date of trial and waited until the morning of trial to request permission to withdraw their waiver. At least one witness had come from a long distance for the trial and the other witnesses were also present in court. In McMillan v. State, 3 Md. App. 699, 702, 240 A.2d 765 we said:

“State procedural requirements have been upheld by the Supreme Court of the United States. See Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A.L.R.2d 933, n. 9; Henry v. Mississippi, 379 U. S. 443, 448, 85 S. Ct. 564, 567, 13 L. Ed. 2d 408.”

Appellants’ third contention is that their oral motion, made on the day of trial, for change of venue, should have been granted. Such a motion is required to be under affidavit by Maryland Rule 738 as well as by the Constitution of Maryland, Art. 4, Sec. 8 and was therefore not in proper form. The only basis for the request for removal was an oral allegation that they could not have a fair and impartial trial because there had been too much pretrial discussion with “newspapers and witnesses.” The trial judge denied the motion stating that he personally, who was going to hear the case, had never heard of it before, and secondly that he thought the action was a delaying tactic. In Benton v. State, 1 Md. App. 647, 651-52, 232 A. 2d 541 we held that in a noncapital criminal case the burden was upon the accused to show that he had been prejudiced by adverse publicity. The mere oral statement that there had been too much publicity certainly is not adequate.

Judgments affirmed; appellants to pay costs.

      . It should be noted that the record later shows that the witnesses were sought for the purpose of impeaching the prosecuting witness as to specific acts of misconduct. Only general reputation is admissible for this purpose. Poff v. State, 3 Md. App. 289, 239 A. 2d 121, Alexander v. State, 4 Md. App. 214, 242 A. 2d 180.


text:
    JAMES S. GUNN, JR. and JEROME B. HESTER v. STATE OF MARYLAND
    [No. 213,
    September Term, 1967.]

      Decided June 17, 1968.

      Appellant Hester’s cause was argued before, and that of appellant Gunn was submitted to, Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      DeHaven L. Smith for appellant Hester, and James W. McAllister (on brief) for appellant Gunn.

      Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles F■ Moylan, Jr., State’s Attorney for Baltimore City, and Leroy W. Carroll and James F. Garrity, Assistant State’s Attorneys for Baltimore City, on the brief, for appellee.
   Per Curiam.

Jerome B. Hester and James S. Gunn, Jr., the appellants, appeal from multiple convictions in the Criminal Court of Baltimore, Judge James A. Perrott presiding without a jury. Hester was convicted of robbery and rape and sentenced to life imprisonment for the rape conviction and ten years for the robbery conviction to run concurrently. Gunn was convicted of robbery and assault with intent to rape and sentenced to ten years for the former conviction to run concurrently with a sentence of life imprisonment for the latter conviction. Although the parties were jointly tried they have filed separate appeals on different grounds which are set out hereinafter.

There was evidence from which the trial court could have found that: The prosecuting witness, aged 15, was walking through Carroll Park in the City of Baltimore at about 9:30 P.M., accompanied by a male friend. At some point in their walk, they realized that they were being followed, and they began to run. The prosecuting witness was unable to keep up with her male friend, and the pursuers overtook; her. She was grabbed by two men; one tall, and the other shorter and fat. The tall one grabbed her around the neck and put a hand over her mouth to keep her from screaming. The short, fat one took her shoulder bag containing $3 and an unknown amount of change. Then one took one arm, and the other, the other arm and pushed her towards the nearby railroad tracks. As the two males pushed her down the embankment toward the railroad tracks, they were joined by another who was walking behind them. When they reached the bottom of the embankment, the three of them were joined by two more youths, one of which was Gunn. She offered them money, but the tall youth, who was identified as Hester, refused, saying “I don’t want your money. You know what we want.” Gunn was present when this conversation transpired. They continued pulling her along the tracks until they found a place that suited them. The tall one shoved her down while the fat one pulled off her shorts and pants. She kept trying to get up, but was continually pushed down by one and then the other as each of the five attempted to have intercourse with her. The fourth one was Gunn. He attempted to have sex relations with her but was unsuccessful because the others were urging him to hurry. Subsequently, three of the males, including Gunn, were frightened away from the scene by approaching lights. The young lady was then forced into a boxcar where she was raped by Hester and the short, fat male later identified as Davis. The two also were seen disposing of the contents of the shoulder bag referred to herein.

Gunn and Hester were identified by the prosecuting witness at a line up and at the trial even though, at the trial, both were permitted to sit in the audience.

Clarence Perdue, one of the young men involved, testified for the State saying :

“We were coming back from Gino’s and Jerome Hester said ‘There go two girls over there.’ So, I think it was Gunn or Davis said, ‘Let’s go get them’.
“MR. SMITH: I object to that.
“THE COURT: Sustained. He is not sure.”

Later he testified that Hester and Gunn ran towards the boy and girl (They thought at first that there were two girls) while Davis, Spence and he stayed behind, but that Davis caught up with Hester and Gunn. When he got there Hester and Gunn had the girl by the arm.

Both Gunn and Hester complain that although the exclusion of witnesses had been requested under Maryland Rule 753, the prosecuting witness was nevertheless brought into the courtroom while the medical doctor was testifying for the purpose of having the doctor identify her as the individual he had examined the night of the rape. Under the rule and under Bulluck v. State, 219 Md. 67, 148 A. 2d 433 when exclusion of witnesses is requested it is mandatory that the trial court comply with the request. In Swift v. State, 224 Md. 300, 167 A. 2d 762 the court found however, that on that factual situation there was a harmless error and declined to reverse on that ground. In the present case the prosecuting witness heard the doctor testify to his qualifications; that he was called to make an examination on the night of the crime; and that he assumed the young lady seated in the courtroom was the one he examined. This testimony did not affect the testimony of the prosecuting witness who had already completed her testimony. We find the error harmless.

Gunn contends that the doctor was not sufficiently qualified to-permit him to testify as an expert. The record shows that he was graduated from Johns Hopkins University in 1951; that he is licensed to practice as a medical doctor in the State of Maryland; that he served an internship of one year at Johns Hopkins ; that he had a two year residency at the Lutheran Hospital and a one year residency at the Maryland General Hospital;, that he received his American Boards in obstetrics and gynecology in 1961; that he had delivered approximately 2,000 babies and had examined 550 females with respect to an alleged rape, and that he was regularly engaged by the Baltimore Police Department for this latter purpose. On this record we hold that this contention is without foundation.

Hester complains that reversible error was committed because the prosecuting witness did not pick him out when she walked through the courtroom the first time, and at the request of the prosecutor, was permitted to walk through the courtroom for the second time before she identified him as one of the criminals. He cites no authority and we know of none for his proposition. In a trial before the court, identification is for the trial judge to determine, and the finding will not be disturbed on appeal in the absence of clear error. We see no such error. See Watkins v. State, 237 Md. 357, 206 A. 2d 568, Hicks v. State, 225 Md. 560, 171 A. 2d 722, Logan v. State, 1 Md. App. 213, 228 A. 2d 837, Carroll v. State, 3 Md. App. 50, 237 A. 2d 535, Crumb v. State, 1 Md. App. 98, 227 A. 2d 369.

Hester next complains that he was denied a fair trial because evidence of a lineup identification was admitted when he was not represented by counsel at the lineup. The lineup evidence was not objected to below and is therefore not before this Court, Maryland Rule 1085, but we will discuss it nonetheless. Hester, of course, relies on United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149; he overlooks Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 wherein the Supreme Court ruled that United States v. Wade, supra does not apply to lineups conducted prior to June 12, 1967. The lineup involved in the present case took place on August 9, 1966. In Tender v. State, 2 Md. App. 692, 237 A. 2d 65 this Court declined to adopt a rule applying Wade more .stringently than is required by Stovall.

Hester and Gunn both contend that the evidence was insufficient to support their respective convictions. Hester was identified by the prosecuting witness as the person who grabbed her pocketbook. He was later observed by a police officer discarding a pocketbook, which was identified as the victim’s. The contention as to robbery obviously has no merit. Hester was also identified by the prosecuting witness as one of the two persons who completed an act of rape upon her in the boxcar. He was observed by a police officer fleeing the scene of the crime. Certain expert testimony also tended to point towards his guilt. 'The testimony of the victim is sufficient to support a conviction of rape, Lucas v. State, 2 Md. App. 590, 235 A. 2d 780.

Gunn was convicted of assault with intent to rape. He was identified by the victim as the fourth person who attempted to have intercourse with her. An accomplice supported this testimony. For the reasons set forth above this contention is also without merit.

Lastly, Gunn contends that according to the testimony of the prosecuting witness, she was first grabbed by Davis and Hester, who took her pocketbook, and therefore, he could not be held responsible for the robbery particularly since the police officer saw Hester with the purse after the crimes had been completed. This argument completely overlooks the testimony of Perdue, the accomplice, who testified that it was Gunn and Davis who first ran to get the girls and that immediately after she was grabbed, he, the witness, came upon the scene and Hester and Gunn were the two who had her by the arm. In Thomas v. State, 2 Md. App. 502, 235 A. 2d 777 at 780, we said:

“It is well settled that persons, actually or constructively present, aiding and abetting the commission of an armed robbery, but not themselves committing it, are principals in the second degree. Vincent v. State, 220 Md. 232, 151 A. 2d 898; Agresti v. State, supra. While appellant was not actually present at the immediate place of the perpetration of the robbery, he was, as in Vincent, in close proximity and contiguity thereto and in such a position to be of aid and assistance to Matto in the successful perpetration of the crime.”

On the evidence in the present case the trial judge could have found, as he did, that Gunn was near to the scene of the crime and that he actually aided in the perpetration of it.

While the testimony of an accomplice must be corroborated either as to some of the material facts tending to show that the accused was identified with the perpetrators of the crime, or had participated in the commission of the crime itself, the testimony, here, of the victim was sufficient for this purpose. See Holt v. State, 3 Md. App. 544, 240 A. 2d 355. Kitt v. State, 2 Md. App. 306, 234 A. 2d 621.

We cannot say that the trial judge was clearly erroneous under Maryland Rule 1086 when he found Gunn guilty of robbery.

Judgments affirmed.

      . We think this evidence was admissible as part of the res gestae no matter who said it.


author: Murphy, C. J.,

text:
    ALBERT GEORGE COLEMAN v. STATE OF MARYLAND
    [No. 233,
    September Term, 1967.]

      Decided June 17, 1968.

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

      James W. McAllister for appellant.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with ■whom were Francis B. Burch, Attorney General, Charles B. -Moylan, Jr., State’s Attorney for Baltimore City, and Barrett Freedlander, Assistant State’s Attorney for Baltimore City, on dhe brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

Appellant was convicted on July 17, 1967 in the Criminal 'Court of Baltimore by Judge Joseph L. Carter, sitting without -a jury, under three separate indictments charging (1) unauthorized use of an automobile, (2) storehouse breaking, and (3) common law assault. He was sentenced to serve a term of ten years on the assault offense and two years each on the unauthorized use and storehouse breaking charges, to run concurrently with the assault term. The only question presented on this appeal is whether the evidence was sufficient to support -appellant’s conviction for common-law assault.

There was evidence adduced at the trial which showed that the assault victim Bedellia McNeal, a fifty-three year old grand■mother, was under the influence of alcohol when she left her ■daughter’s home at 5:00 p.m. on December 8, 1966. Shortly 'thereafter, the victim’s daughter was advised that her mother had been taken to Johns Hopkins Hospital in a badly beaten condition.

The victim testified that she was unable to recall any of the events surrounding the assault since she had been “kind of intoxicated” on the day of the crime. The evidence showed that as a result of the beating, Mrs. McNeal’s left eye was “hanging” from its socket and ultimately had to be removed; that she also sustained damage to her right eye, was bruised about the face and head, suffered internal bleeding and some broken ribs.

Officer Robert Rubin of the Baltimore City Police Depart■ment testified that at 6:20 p.m. on December 8, 1966, he responded to a call where he observed Mrs. McNeal in an unconscious condition, lying nude in the alley which ran alongside •of 1403 East Madison Street, this being the address where the victim resided. Rubin testified that Mrs. McNeal was bleeding from the face and head and her clothing had been ripped and strewn about the area.

Randolph Crouell, a nine year old fourth grade school boy, was the State’s principal witness. He testified that it was dark on December 8, 1966 when he and his friend Keith Brown saw three boys approach a lady who was sitting in the front of a house on Madison Street; that one of the boys asked her for a match, and after the lady said she didn’t have a match, “the boy drug her in the alley,” at which time “one boy was lighting a cigarette and another boy had a flashlight and he put it up on the side of a little pipe and then went behind the little wall, and me and the boy named Keith, we seen the boys beating the woman.” The witness further testified that it was “a boy in a blue coat, and another boy” who dragged the lady into the alley; that neither of these boys was the appellant; that he knew the appellant as Sonny; that the appellant was present when the boys approached the victim but he “didn’t do nothing, but he was standing there”; that when “the boy in the blue coat” dragged the victim into the alley, appellant “was lighting a cigarette in the alley, and he had a flashlight in his hand”; and that appellant put the flashlight “up in the top of a pipe,” which was “on top of the wall.” The witness further testified that he made these observations by the light of the flashlight and from “behind the wall” and that he, presumably referring to the appellant and his flashlight, was “shining it down.”

The witness Crouell did not specifically state during his testimony that he saw the appellant beat the victim, nor was he asked to identify the victim as Mrs. McNeal. During the course of his testimony on direct examination, the State claimed to have been surprised by Crouell’s testimony and an unreported bench conference then ensued. It cannot, however, be gleaned from the record just how or by what testimony of the witness the State was surprised. Appellant did not cross-examine Crouell.

Keith Brown, also nine years of age and in the third grade, was then called as a witness by the State. He testified that he was with Randolph Crouell “behind the wall,” in the alley, in the night, and saw appellant kick a lady and remove her clothing. At variance with this testimony, the witness thereafter stated that he didn’t see the appellant on the night of the crime, but recognized him from his “deep voice,” despite the fact that he had not known appellant previously and that appellant said nothing on the night of the offense. The witness further testified that Randolph Crouell told him what the appellant had done, but that he personally observed the appellant take the clothing off the lady. He was not asked to, nor did he, identify Mrs. McNeal as the victim of the assault.

There was evidence showing that some three months after the crime appellant was interrogated by police, apparently with reference to the assault on Mrs. McNeal, at which time he orally admitted that he was “in the alley” but that “I didn’t do nothing”; that “I was smoking a cigarette.”

The sixteen year old appellant did not testify on his own behalf. The trial judge, in finding appellant guilty of assault, stated that he did so without consideration of the testimony of Keith Brown.

It is well settled that the presence of the accused at the immediate and exact spot where a crime is in the process of being committed is a very important element that may be considered in determining guilt. Johnson v. State, 227 Md. 159; Tasco v. State, 223 Md. 503; Spencer v. State, 1 Md. App. 264. Equally well settled is the proposition that such presence, standing alone, is insufficient to establish participation in the perpetration of the crime. Watson v. State, 208 Md. 210; Williams v. State, 3 Md. App. 58; Willis v. State, 2 Md. App. 662; Neil v. State, 2 Md. App. 659; Pettis v. State, 2 Md. App. 651. And the fact that a person witnesses a crime and makes no objection to its commission, and does not notify the police, does not, of itself, make that person a participant in the crime. Watson v. State, supra; Boone v. State, 2 Md. App. 80. On the other hand, the trier of fact is entitled to take into consideration all the attendant circumstances surrounding the presence of the accused at the scene of the crime in making his determination of guilt or innocence. Chavis v. State, 3 Md. App. 179.

As the crime of assault is a common-law misdemeanor in Maryland, and as all participants therein are chargeable as principals, Coleman v. State, 209 Md. 379, Watson v. State, supra, the question before us is whether there was any legally sufficient evidence showing that appellant participated in the crime, i.e., that he knowingly, voluntarily, and with common criminal intent with the other participants assaulted Mrs. McNeal or that he advocated, encouraged, aided or abetted in the commission of the crime. See Anello v. State, 201 Md. 164; Agresti v. State, 2 Md. App. 278. To be an “aider” a person must assist, support or supplement the efforts of another; to be an “abettor” a person must instigate, advise or encourage the commission of a crime and may in some circumstances include a person who is present at the commission of the crime without giving active assistance. Coleman v. State, supra; Seward v. State, 208 Md. 341; Anello v. State, supra.

In every criminal case, evidence, to meet the test of legal sufficiency, must show directly, or support a rational inference of, the facts required to be proved; and the facts must be established, or the inference supported, beyond a reasonable doubt or to a moral certainty, or a reasonable doubt of an opposite fact must be created. Vincent v. State, 220 Md. 232; Cobb v. State, 2 Md. App. 230. Since the instant case was tried by the court sitting without a jury, we may review the case upon both the law and the evidence, but cannot set aside the judgment of the lower court on the evidence unless clearly erroneous, giving due regard to the opportunity of the lower court to judge the credibility of the witnesses. Maryland Rule 1086. We do not, therefore, determine whether the defendant was guilty beyond a reasonable doubt; our function is to determine whether there was any evidence, or proper inferences from the evidence, upon which the trial court could find the defendant guilty beyond a reasonable doubt, and if the record shows such evidence, or proper inferences, we cannot find that the decision was clearly erroneous. Abney v. State, 244 Md. 444; Spencer v. State, supra.

On the record before us, we think there was legally sufficient evidence before the trial court from which it could properly conclude that the appellant was in the alley during the assault on Mrs. McNeal. From the testimony of Randolph Crouell, we think the trial judge could properly find that appellant was with the boys who approached Mrs. McNeal as she sat in front of her house; and that while there is no evidence to. show that appellant physically assisted in dragging the victim into the alley, there was evidence showing that he was not only at the exact spot where the savage and brutal assault immediately thereafter occurred, but that he had a flashlight in his possession which he utilized in such manner as to provide better illumination for the perpetration of the crime. The fact that just prior to the crime appellant was with those persons who actually dragged the victim into the alley indicates a degree of identification and companionship with such persons from which, in light of appellant’s subsequent actions, it may properly be inferred that he shared a common criminal intent with the others, to assault the victim. Indeed, at the least, his proximity to the scene of the crime during its occurrence, and his ability to be of assistance to the other perpetrators of the offense, if necessary, either as a lookout or to prevent interference, lends meaning to and provides a rational reason for his continuing presence during the assault. See McEntire v. State, 2 Md. App. 449; Sanders v. State, 1 Md. App. 630. While the testimony of Randolph Crouell, the State’s principal witness, leaves much to be desired, and the record does not demonstrate with any degree of clarity as to how Crouell observed the crime from “behind the wall,” we nevertheless cannot say on the basis of all of the evidence that the trial judge was clearly in error in finding that the appellant was a participant in the crime. In so concluding, we have not considered Crouell’s testimony that he saw “the boys” beating the victim as specifically including the appellant as one of the boys, nor have we considered the testimony of Keith Brown to have any probative value.

Finding no error in the assault conviction, and no question-being raised as to the sufficiency of the evidence to support the unauthorized use and storehouse breaking convictions, the judgments must be affirmed.

Judgments affirmed.


author: PER Curiam.

text:
    VIRGINIA JOHNSON v. STATE OF MARYLAND
    [No. 268,
    September Term, 1967.]

      Decided June 19, 1968.

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

      J. Hodge Smith for appellant.

      Fred Oken, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and William A. Linthicum, Jr., State’s Attorney for Montgomery County, on the brief, for appellee.
   PER Curiam.

Virginia Johnson, the appellant, was tried in the Circuit Court for St. Mary’s County, Judge Philip H. Dorsey, Jr. presiding without a jury. By agreement of counsel three separate cases were consolidated and tried together. The indictment in Case No. 2204 charged shoplifting, grand larceny and receiving stolen goods; the indictment in Case No. 2203 charged assault and battery upon Harold A. Treadwell; the indictment in Case No. 2229 charged Virginia Johnson with aiding and abetting John David Hines to commit a crime of assault with intent to murder Harold A. Treadwell. Johnson pled guilty to the first count of the indictment in Case No. 2204 (shoplifting); she was found guilty of assault and battery in Case No. 2203, and was found not guilty of aiding and abetting assault with intent to murder in Case No. 2229. In Case No. 2204 (shoplifting) Johnson was sentenced to imprisonment for the term of ten years which was later reduced to three years under a motion to correct the illegal sentence. In Case No. 2203 she was sentenced to five years consecutive to the sentence in Case No. 2204. On appeal Johnson contends that there was an insufficiency of the evidence to support the conviction for assault and battery and that the sentence for this crime was unlawful.

The evidence for the State showed that Detective Lieutenant Harold Treadwell, of the Montgomery County Police Department detected Johnson and a companion in the act of shoplifting in the Sears Roebuck store in Silver Spring, Maryland, about 2:40 P.M. on March 18, 1967. They fled from the store and were pursued by the detective, who was in plain clothes. A car was waiting for them on the parking lot with a man behind the wheel. Johnson entered the front seat, her companion the rear. As the detective came up, the car started up quickly and knocked him down. Treadwell managed to open the car door, but the car was rapidly maneuvered back and forth and he was again knocked to the ground. The driver then ran into a sign, backed off, and again struck the detective. As the opportunity presented itself Johnson struck at the officer with her handbag and continued to scream, “Kill the bastard, kill the bastard.”

The trio managed to escape from the parking lot and were apprehended about two miles from the store. Treadwell, arriving promptly at the scene of the arrest, observed on the car seat the stolen merchandise which consisted of dresses, suit combinations, and mens’ suits, with a total value of $222. Johnson was brought to the Silver Spring Detective Bureau. When two uniformed policewomen were detailed to search her, she became violent and kicked Lieutenant Treadwell in the groin. Two police officers testified that she appeared to be under the influence of narcotics.

Johnson took the witness stand, admitted the theft, denied knowing that Treadwell was a detective, and claimed that she slammed the door and shouted at the driver to take off because she saw that Treadwell had a gun and that she thought he was going to shoot. She said that she resisted the police at the police station because they were trying to examine her arms and in the scuffle she kicked Treadwell unintentionally and without realizing that she had done so. She also admitted an extensive criminal record.

Since there was no obligation on the trial court to accept the testimony of the accused, Tillery v. State, 3 Md. App. 142, 238 A. 2d 125, Trout v. State, 3 Md. App. 259, 238 A. 2d 281, there is clearly no question but that there was sufficient evidence to support the conviction for assault and battery.

The contention concerning the illegality of the sentence on the conviction for assault causes no more difficulty. There is no statutory limit on a sentence for this crime. Miller v. State, 1 Md. App. 653, 232 A. 2d 548, Gee v. State, 2 Md. App. 61, 233 A. 2d 336, Allen v. State, 2 Md. App. 740, 237 A. 2d 90. Sentences substantially in excess of five years have been approved by the Court of Appeals in several cases. Roberts v. Warden, 242 Md. 459, 219 A. 2d 254, Adair v. State, 231 Md. 255, 189 A. 2d 618 approved 20 year sentences for this crime, Austin v. Director, 237 Md. 314, 206 A. 2d 145, Gleaton v. State, 235 Md. 271, 201 A. 2d 353, Hobbs v. Warden, 223 Md. 651, 163 A. 2d 331 all approved sentences of ten years for simple assault. The long criminal record admitted by Johnson would justify the sentence in this case and show that it was not dictated by passion, prejudice, ill-will or other unworthy motive. See Johnson v. State, 2 Md. App. 235, 234 A. 2d 167, Washington v. State, 2 Md. App. 633, 236 A. 2d 32, Fisher v. State, 1 Md. App. 505, 231 A. 2d 720.

Judgments affirmed.

      . The briefs indicate that she was also charged with assault and battery in Case No. 3229. The indictment shows to the contrary. She was charged with aiding and abetting John David Hines to commit assault with intent to murder Harold A. Treadwell in the first count of that indictment; in the second count John David Hines was charged with assault and battery but Johnson was not mentioned.

      . Much of the written and oral argument concerned an apparent inconsistency in the verdicts because of the judgment of acquittal in No. 2229 which was thought to include a count for simple assault and battery. In view of the information set out in note 1 we need not consider this contention.


author: Orth, J.,

text:
    MARGARET NANCY FINNEGAN v. STATE OF MARYLAND
    [No. 284,
    September Term, 1967.]

      Decided June 19, 1968.

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

      Arnold Blank for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, on. the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

On 3 July 1967 the appellant entered a plea of guilty to possession of lottery tickets in the Circuit Court for Prince George’s County. A pre-sentence investigation was made and on 7 August 1967 she was sentenced to imprisonment for a term of one year, the execution of the sentence was suspended and she was. “placed on probation, under the supervision of the Department of Parole and Probation, for a period of three years, upon the special condition that she remain with her children and care for them, and that she co-operate in the fullest degree with the State’s Attorney’s Office from Prince George’s County in the discovery of and prosecution of any persons of which she may have knowledge in connection with the offense with which she was charged.” Before imposing the sentence and the conditions of probation the court said to the appellant:

“THE COURT: In any event, this would appear to be one of those cases where we can take a chance on you without losing too much, because if you revert to any kind of criminal activity you are going to be compelled to return to court, serve the sentence that the Court imposes on you today, as well as whatever you get for the new offense. And another special condition of your probation is going to be that if anybody from the State’s Attorney’s Office calls you, either by night or by day, you are to go down to that office and co-operate with them in the prosecution of anybody that they have picked up that you know anything about. Do you understand that ?
THE DEFENDANT: Yes, sir: I do.
THE COURT: The very first time the State’s Attorney’s Office reports to the Court you have failed . to co-operate with them fully, in identifying or testifying against any of your former business associates, off you go to prison. Do you understand that ?
THE DEFENDANT: Yes, sir.”

On 7 September 1967 at a hearing in open court the court found her to be in violation of probation and it ordered the suspension of her sentence stricken. She was “remanded to the custody of the Sheriff to be delivered into the custody of the Commissioner of Correction to serve the unexecuted portions of the ■sentence heretofore imposed.”

During the hearing Shirley Sollers testified that she had filed a suit for divorce against her husband, Charles Sollers, in the Circuit Court for Montgomery County and that about 18 November 1966 she had testified in that action that the appellant was an employee of her husband. She said that her husband was engaged in bookmaking, that the appellant (referred to by her as Peggy) and another girl named Michele had started to work for him about March or April 1966, that she called his office about that time and the appellant answered the telephone, that she had seen the appellant in the company of her husband and Michele and had seen her on three different occasions going in and coming out of the apartment building from which her husband conducted lottery operations. The appellant had told the police that she worked in the gambling operations with Stanley, Chet and Vic and that she had only a casual relationship with Charles Sollers, whom she understood to be in the plumbing business, serving him in her capacity as a waitress at Oak Grove Inn. Mrs. Sollers did not know anyone by the name of Stanley, Chet or Vic “that might have been running a numbers operation at the same location” as her husband. At the conclusion of the evidence presented by the State the appellant’s counsel argued that the appellant maintained that she did not know the identity of the persons who employed her in the gambling operations except by description and first name, which information she had given to the police. The record then shows the following:

“THE COURT: Mr. Stephens, all of this is beside the point. I told her that she was to co-operate with these men in the prosecution of the people who were her associates in the numbers business; that she was supposed to identify them and appear to testify against them. Now she says she didn’t know any of them except these nameless or faceless people, and it turns out that she certainly did know the man she was working for, that she was in and out of his apartment, and she called him and made 20 or 30 calls to his right-hand man.
MR. STEPHENS: She states that she never worked for that individual.
THE COURT: I know. That is what bothers me. It is pretty obvious that she did work for him. There isn’t any question about it.
MR. STEPHENS : Well, if that is the situation, why hasn’t there been an arrest ?
THE COURT: I don’t know, but I am not concerned with that. Probably because your client refuses to identify and appear and testify against him.
Why on earth she should persist in protecting somebody making the biggest amount of money at the risk of going to prison herself, I don’t know.
MR. STEPHENS: This Mrs. Sollers will testify admittedly.
THE COURT: Is your client prepared to get on the stand and deny what that woman said ?
MR. STEPHENS: I believe she is, yes, Your Honor.
THE COURT: Your standing up there arguing won’t help her too much in this present state of affairs, I can tell you.
Whereupon,
MARGARET NANCY FINNEGAN
defendant herein, was called as a witness in her own behalf, and, having been first duly sworn, was examined and testified as follows:
THE COURT: Now, sir, I want to ask you before you start this whether you have advised your client of the penalties for perjury?
MR. STEPHENS: Will you step down?
Your Honor, may I speak to her although she is under oath,
THE COURT: Yes, indeed.
Go back down.
MR. STEPHENS : Could we request a short recess?
THE COURT: Yes, sir. I think you had better explain it to her pretty clearly because if it becomes apparent to me that she is lying to me, she is going to have not only the State’s Attorney responsible for her prosecution but it is going to be conducted under the order of the Court.”

After a brief recess counsel informed the court that the appellant elected not to testify. The court said, “I think that is a prudent election under the circumstances.”

The appellant presents the question on appeal from the order revoking probation, “Did the conduct of the trial Judge in stating his belief of the evidence given by the State coupled with his threat of a charge of perjury made to the Appellant prior to Appellant’s testifying constitute such prejudice and bias as to deny Appellant a fair and impartial trial and/or so intimidate appellant as to prevent her testifying and thereby deny her due process of law ?”

The Court of Appeals has held that a parole cannot be revoked without giving the parolee a hearing, and that this is a requirement of due process of law. Swan v. State, 200 Md. 420, 425. It follows that the question of whether the hearing complied1 with the requisites of due process may be reviewed by this. Court on appeal. The hearing on the inquiry of whether or not the conditions of probation have been violated is not required to be a trial in the strict or formal sense. Warden v. Palumbo, 214 Md. 407, 411. The demands of due process will be satisfied if the probationer is extended a reasonable opportunity to defend himself against the charge that he has violated the conditions upon which his probation was granted. Jett v. Superintendent, 209 Md. 633, 640. In the instant case we think the appellant could reasonably take the remarks of the lower court to mean that it had found at the conclusion of the evidence offered by the State that she had worked for Charles Sollers in the gambling operation, that she knew the identity of those who. employed her other than by first name and description and that if she took the stand and testified to the contrary or asserted that the testimony of Mrs. Sollers was not correct she would be prosecuted for perjury, not only at the instance of the State’s Attorney but under order of the Court. We cannot declare, under the circumstances here, that the court meant by what it said only that the State had made out a prima facie case or, as the State urges, that it was merely expressing “an opinion on the evidence as it stood.” Compare Holtman v. State, 219 Md. 512, 518; Clark v. State, 2 Md. App. 756. We feel that the court placed a choice squarely before the appellant. She could elect not to testify and serve the sentence of one year or she could testify and, unless she corroborated the evidence presented by the State, be prosecuted for perjury with the possibility of an additional sentence. By the posture of the choice confronting her we agree with the trial court that her election not to testify was “a prudent election under the circumstances.” However, we cannot say that her election was freely and voluntarily made. Of course, if she testified and committed perjury she would be properly subject to prosecution, but she was entitled to testify if she chose and should not have been deterred from so doing, as she obviously was, by the clear threat of prosecution for perjury if her testimony was contrary to what the lower court had patently determined to be the facts before hearing such explanations she may have advanced, without weighing such testimony she may have offered and without the opportunity to judge her credibility. It may be that had the appellant testified the determination of the lower court would not have changed, but in the circumstances shown by the record before us we feel that the appellant was not extended a reasonable opportunity to defend herself against the charge that she had violated the conditions upon which her probation was granted and therefore the demands of due process were not satisfied. We hold that she be granted a new hearing.

In view of our holding we need not decide whether the lower court abused its discretion in revoking probation with regard to whether the appellant in fact violated the terms of her probation. We have stated that such question on review includes the construction of the terms of probation which were made known to the appellant and by which she was to be guided in her conduct. We note that the State stipulated that it had “no information which would reflect that she has been involved in any criminal activities since that date (when she was placed on probation) and that her conduct and work has been, and matters to that effect, have been exemplary. We have no information to show otherwise, other than the matter before the Court that she failed to cooperate as a special term of her probation.” In any event, whether this “special term” of her probation was a proper one cannot be now considered. The validity of conditions of probation as set forth in the original sentence may be determined on appeal from the original judgment, Bird v. State, 231 Md. 432, 437-438, but not on appeal from revocation of probation, because to do so would, in effect, permit a circumvention of Md. Rule, 1012, which requires an appeal to be taken in thirty days. See Coleman v. State, 231 Md. 220, 223; Md. Code (1968 Repl. Vol.) Art. 5, § 13.

Order striking suspension of sentence of August 7,1967 reversed; case remanded for a new hearing; costs to be paid by County Commissioners of Prince George’s County.

      . It is established that an appeal lies from the revocation of a suspended sentence and the striking out of probation by the lower court. Coleman v. State, 231 Md. 220, 222. The question of whether the terms of probation have been violated is largely one of fact but also includes the construction of the terms of the suspension which were made known to the defendant and by which he was to be guided in his conduct. “Such questions, while primarily within the discretion of the trial judge, are not wholly so, and are reviewable, if only for the purpose of determining whether that discretion has been abused in any way, or whether an erroneous construction has been placed by the trial judge on the conditions of the parole.” Swan v. State, supra, 425-426; Welborn v. Warden, 2 Md. App. 351, 354.

      . See Wroten v. State, 2 Md. App. 410, in which we noted in finding that the lower court had not abused its discretion in revoking probation, that the probationer “was given full opportunity by the court to satisfactorily explain” his alleged violations of probation.

      . Md. Code (1967 Repl. Vol.) Art. 37, § 639 provides in relevant part:
      “The courts may suspend sentence generally or for a definite time, and may make such orders and impose such terms as to * ** * matters relating to the residence or conduct of the convicts as may be deemed proper; * *
      While the conditions of probation are usually within the discretion of the trial court, its power to impose conditions is not unlimited. For example, the suspension of sentence conditioned on banishment is beyond its power and void. Bird v. State, supra, 438. And “fbly ‘conduct’ is to be understood the personal behavior or deportment of the convict, and consequently does not embrace the payment of a monthly fine or penalty.” Kelly v. State, 151 Md. 87, 100. The questions whether the condition imposed in the instant case — that the appellant “co-operate in the fullest degree with the State’s Attorney’s Office from Prince George’s County in the discovery of and prosecution of any persons of which she may have knowledge in connection with the offense with which she was charged” — properly concerned “the personal behavior or deportment” of the appellant or, even if it did, whether it was sufficiently definite so that the appellant could reasonably be guided in her conduct thereby, being not properly before us we do not decide them.


author: PkR Curiam.

text:
    NORMAN BORK v. STATE OF MARYLAND
    [No. 297,
    September Term, 1967.]

      Decided June 19, 1968.

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

      William II. Meserole, Jr., for appellant.

      Bernard L,. Gilbert, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Howard Chasanow, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   PkR Curiam.

Norman Bork, the appellant, was tried in the Circuit Court for Prince George’s County, Judge Ralph W. Powers presiding with a jury, and convicted of robbery with a deadly weapon. He was sentenced to the jurisdiction of the Department of Correction for ten years. Bork contends that the trial court erred in admitting statements acquired in violation of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, and in admitting evidence concerning an extrajudicial lineup.

As to the first contention the record shows that after the defense had completed its case, the State put on rebuttal witnesses, primarily to rebut the sanity issue raised by Bork. Detective Frederick W. Whalen, a rebuttal witness for the State, testified on direct examination that he advised Bork of his constitutional rights, and Bork elected not to make a statement until he had contacted an attorney. Whalen was then asked:

“Q. Did you ask him questions or did you have any conversation with him ?
“A. I asked him questions on a prescribed form. No, sir, I did not. We did not have a form at the time. I advised him of his rights verbally. The only statement made to me, he said that he had been hitchhiking and didn’t know the other subject in the vehicle and the reason he had ran, this other person had told him to.”

There was no objection below to the question; there was no motion to strike out the answer; substantially the same statement had been given to two other police officers previously and there was no objection to the questions or to the answers when the statements were entered in evidence.

In Gaudio and Bucci v. State, 1 Md. App. 455, 463, 230 A. 2d 700, 705, we stated that “When a confession is admitted without objection, an objection cannot be made for the first time on appeal. Tucker v. State, 237 Md. 422, 206 A. 2d 691 (1965).” See also Maryland Rule 1085.

Bork recognizes this state procedural requirement but alleges, that there was objection to the evidence. The record does not support his contention. The objections were to questions concerning his appearance and manner at the time he was questioned. Bork also alleges that there was error in admitting some answers he gave after claiming his right to counsel, but these answers were introduced by Bork on cross examination and not by the state. He obviously cannot now object to his own cross examination of the state’s witnesses.

Bork next contends that his pre-trial identification by the victim of the robbery, at a lineup, held July 26, 1966, was unconstitutional because his attorney was not present as required by United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, (1967) and that the later in-court identification by the victim was tainted by the prior identification.

Bork concedes that there was no objection below to the introduction of any of this evidence and that there was no motion to strike any of it, but he argues that because the question is a federal constitutional question state procedural requirements do not apply.

In note 9, Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 the Supreme Court of the United States said:

“As is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.”

See also Henry v. Mississippi, 379 U. S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408, Gaudio and Bucci v. State, supra, Maryland Rule 1085.

Judgment affirmed.

      . The actual wording of the warnings is not in the record.


author: Morton, J.,

text:
    ROBERT JASPER RODGERS v. STATE OF MARYLAND
    [No. 146,
    September Term, 1967.]

      Decided June 21, 1968.

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

      Morris Lee Kaplan for appellant.

      William E. Brannan, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Alfred J. O’Eerrall, III, Assistant Attorney General, Charles E. Moylan, Jr., Slate’s Attorney for Baltimore City, and Howard L. Cardin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The Appellant was convicted of rape and common-law assault by a jury in the Criminal Court of Baltimore and sentenced to twenty years’ imprisonment on the rape conviction and the sentence was suspended on the assault conviction.

Janice, the victim of the rape, was eleven years old and a student in the fifth grade. She testified that on October 7, 1966, at approximately 5:30 P.M. she was playing near a young friend’s house. Peggy, the young friend, asked her to come into her house and there she saw the Appellant sitting in the living room. He then left the house and Janice departed a few minutes later to return to her home. She was immediately accosted by the Appellant who was standing by his car which was parked in front of the house. He forced her into the car and, according to Janice, drove first to a parking lot near Park Heights Avenue and Druid Hill Drive and then to Cahill Park where, as she stated, “he pulled up my skirt, and then he pulled my underwear over to the side, and he stuck his penis in my vagina.” As a preliminary to the attack, he placed a four inch razor near her neck and told her he had already “killed two little girls.” She stated that the Appellant was wearing a uniform with the words “Park Circle written on it * * She described the car he was driving as a blue and white, four door sedan and she unsuccessfully attempted to take down the license tag number by writing it on her leg. She gave the police two possible numbers but both were to vehicles owned by individuals who could not have been involved. She identified the Appellant in ■a police lineup; was unable to identify him at a preliminary hearing; and identified him at the trial, after extensive cross ■examination, where she said, “I’m sure it’s the man.”

Peggy testified that the Appellant came to her home in the late afternoon of the day in question and when told that her father was not at home, he asked if he could wait for him. Shortly thereafter the Appellant grabbed her, put a knife to her throat and ordered her to bring Janice into the house. After Janice came into her house, the Appellant immediately left, saying to Peggy, “tell your father that Mr. John — No, Mr. Johnson was here.” Shortly thereafter Janice left and was told by Peggy to be careful. Peggy then saw the Appellant “waiting outside with his car door open, and he grabbed Janice.” Peggy testified that she had seen the Appellant before since he had worked on her father’s car but she did not know his name. She failed to identify the Appellant at the lineup. When asked, ■“Why?” she stated: “Because I was afraid of him.” Eikewise, she did not identify him at the preliminary hearing. However, .she positively identified him at the trial and replied in the affirmative when asked if the Appellant was the man in her house who held a knife to her throat and who had forced Janice into his car.

The Appellant testified that he did work for Park Circle Motors; that he owned a white 1958 Cadillac; that he left work on the day in question at 5 :05 P.M. in the company of several fellow employees; stopped and had some drinks and was home by 6:20 P.M. where he remained with his wife and six foster children, the remainder of the evening. His wife corroborated his testimony in this regard.

A representative of Park Circle Motors testified that the uniform worn by the employees displayed the Chevrolet emblem and name and the name of the employee, but not the name Park Circle Motors.

In this appeal, it is first contended that the lower court erred in refusing to submit the following question on voir dire: “Do you believe that the members of the Negro race have a greater inclination to commit sex crimes than members of other races?” We find this contention to be without merit. The lower court did propound the following question to the prospective jurors:

“Do any of you have any prejudices against members of the Negro race, which would prohibit your rendering a fair, just, and 1 will add, impartial decision in the case now being called which involves a member of the Negro race?”

The nature and extent of the voir dire examination rest in the sound determination of the trial court. Culver v. State, 1 Md. App. 406, 417. Its purpose is to ascertain whether the prospective jurors are free from bias or prejudice and capable of making objective and impartial findings. McIntyre and Davis v. State, 1 Md. App. 586. In view of the question propounded by the lower court, we find no abuse of its discretion in refusing to submit the question proposed by the Appellant.

Likewise, we find no merit in the Appellant’s contention that two members should have been eliminated from the jury for cause since they had previously served on a past grand jury. They were not members of the grand jury which returned the indictment of the Appellant and they were asked whether an indictment by the grand jury raised a presumption of guilt in their minds or amounted to evidence of guilt. The Appellant cites no authority, and we are unaware of any, which supports the view that these jurors, under the circumstances, should have been disqualified for cause. For the same reason, we find no merit in his contention that a third member of the jury should have been disqualified because he was related to a police officer (who had no connection with the Appellant’s case). Borman v. State, 1 Md. App. 276.

The Appellant next contends that Janice, the eleven year old rape victim, was not properly qualified to testify. The record indicates that upon inquiry by the State’s Attorney, she testified that she was taught in church “not to tell a lie”; that people who tell lies “get punished”; that she was going to tell the truth; and when asked on cross-examination by defense counsel what the State’s Attorney had told her, she replied, “he told me just to tell the truth.” The legal capacity of children to testify is within the sound discretion of the trial court. Horsey v. State, 225 Md. 80; Robert v. State, 220 Md. 159; Saldiveri v. State, 217 Md. 412; Reckard v. State, 2 Md. App. 312. We see no abuse of discretion by the trial judge in his finding that the victim was qualified to testify.

The Appellant also contends that the lower court erred in overruling his objection to testimony relative to Janice’s statement at the time of the lineup. He is evidently referring to Peggy’s statement since there is nothing in the record relative to a statement by Janice at the lineup. Over Appellant’s objection, the State was permitted to ask a police officer what Peggy stated when she was asked by the police why she didn’t pick the Appellant out of the lineup. The officer was permitted to answer: “She said ‘cause I was scared.’ ” It is urged that this was hearsay evidence and therefore inadmissible.

The victim, Peggy, had not been asked by the State’s Attorney on direct examination anything relating to the lineup at which she failed to identify the Appellant. However, on cross-examination by defense counsel she was asked whether she attended a lineup containing the Appellant and had been able to identify him. She answered: “No, I was scared.” Later in the trial the defense called Sergeant Flynn of the Baltimore City Police Department and interrogated him regarding a lineup containing a man named Johnson. The officer testified that both victims failed to identify Johnson as the perpetrator of the crimes. The officer was then asked about the lineup containing the Appellant and particularly whether the Appellant was requested to speak and what he was wearing. The State’s Attorney, on cross-examination, asked the officer whether he had taken a statement from Peggy with reference to her failure to identify the Appellant in the lineup and the officer was permitted to answer: “She said ‘cause I was scared.’ ” It is this testimony that the Appellant argues is hearsay evidence and that its admission constitutes reversible error. We disagree.

The victim was in court and the statement as to the reason she failed to identify the Appellant was brought out, not by the State, but by the Appellant so that we do not have a situation where the State was producing an out of court statement of the victim, through a third party, without any opportunity on the part of the defense to cross-examine the victim. Moreover, the state did not produce the police officer. The defense did— and questioned him about the Rodgers lineup. Under these circumstances, we are not persuaded that this case should be reversed on the basis that the officer’s testimony violated the Hearsay Rule. Assuming, without deciding, that the testimony was hearsay, it was, nevertheless, merely cumulative. Lewis v. State, 2 Md. App. 318.

It is next contended that prejudicial error was committed by the failure of the trial judge to give the following instruction: “That no class of testimony is more uncertain and less to be relied on than that as to identity, and where great doubt is cast upon the witnesses themselves, the jury should be cautious in considering it.” The Court did, however, advise the jury that the testimony relating to the identity of the Appellant “was limited to two young girls” and he added: “However, you must consider their age, compare their normal life and family, in considering what weight you should give to their testimony as to the identity of this defendant, and you should give every care in scrutinizing the testimony of those victims.” Under the circumstances, we find no error in the lower court’s refusal to grant the requested instruction.

The Appellant also maintains that since there was no legally sufficient evidence to sustain the conviction, his Motion for Judgment of Acquittal should have been granted. He points out that although the rape victim identified the Appellant in a lineup and at the trial she did not identify him at a preliminary hearing; that although the assault victim identified him at the trial, she did not identify him in the lineup or positively identify him at the preliminary hearing; that although both victims testified that the name “Park Circle” was on the Appellant’s uniform, a representative of the company testified that the uniforms did not contain that name; that the description given by the victim of the Appellant’s automobile was not that of the car he owned; and that the examining physician was told by the rape victim that the man said his name was Johnson. These, of course, are arguments which undoubtedly were made to the jury by defense counsel and, however persuasive some of them may-appear, it is obvious that they did not convince the jury of the Appellant’s innocence. They are, nevertheless, arguments which, go to the weight rather than the sufficiency of the evidence. As. we said in Culver v. State, 1 Md. App. 406, 409:

“When a case is tried by a jury, and the point is properly raised, as it was here by the latter motion, this Court determines the sufficiency of the evidence to take the case to the jury, but does not weigh the evidence presented to the jury. Ramsey v. State, 239 Md. 561 (1965). In order for us to overturn a judgment entered on the verdict of a jury for insufficiency of the evidence it is necessary to show that there was no legally sufficient evidence, or inferences drawable therefrom, on which the jury could find a defendant guilty beyond a reasonable doubt. Royal v. State, 236 Md. 443 (1964). So the scope of our review is not to determine whether the State has proved its case beyond a reasonable doubt, but whether there was any relevant evidence properly before the jury which would sustain the conviction. Tull v. State, 230 Md. 596 (1963); Fowler v. State, 237 Md. 508 (1965).”

In the case at bar, both victims positively identified the Appellant at the trial. The Court of Appeals of Maryland and this Court have repeatedly held that the testimony of a single-eye witness to a crime, if believed, is legally sufficient to support a conviction. Turner v. State, 242 Md. 408; Wesbecker v. State, 240 Md. 41; Hutchinson v. State, 1 Md. App. 362, 367; Crumb v. State, 1 Md. App. 98, 103. The sufficiency of the identification of an accused is primarily a matter for the trier of facts and any lack of positiveness would affect the weight of the evidence and the credibility of the witnesses, which, in this case, were for the jury’s determination. Logan v. State, 1 Md. App. 213, 216; Hursey, Jr. v. State, 233 Md. 243, 244.

The Appellant’s complaint that the lineup was unfairly and' prejudicially conducted is not properly before us since the testimony regarding the identification at the lineup came in without objection. In any event, we cannot ascertain from the record before us whether the lineup was conducted in a constitutionally impermissible manner (e.g. the rationale in Simmons v. United States, 88 S. Ct. 967), although it does indicate that no one else in the lineup “was wearing the type of uniform” that the Appellant was wearing at the time. Such an inquiry may be appropriate upon an evidentiary hearing under the Uniform Post Conviction Procedure Act.

Judgments affirmed.

      . In Maryland, unlike most states, prior consistent statements have been held admissible for the purpose of rehabilitating an impeached witness. The cases are collected and discussed in Dyer, Extrajudicial Identification, XIX Md. L. R. 200 (1959).


text:
    ELMER TEGELER BITZER v. STATE OF MARYLAND
    [No. 241,
    September Term, 1967.]

      Decided June 21, 1968.

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

      John W. Hessian, III, and Louis Peregoff for appellant.

      Edward, S. Digges, Special Assistant Attorney General, with whom were Francis B. Bwrch, Attorney General, Samuel A. Green, Jr., State’s Attorney for Baltimore County, and Clewell Howell, Jr., Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The Appellant was found guilty of assault and battery and not guilty of assault with intent to rape in a non-jury trial in the Circuit Court for Baltimore County and sentenced to a term of five years.

The victim of the assault, a young school teacher, testified that during the afternoon of September 23, 1966, she was walking her two dogs along a public thoroughfare when an individual approached her on a motorbike, threw her to the ground, unzipped her slacks, but got up and left as a truck approached.

During the course of the trial, a detective of the Baltimore County Police Department was permitted, over objection, to testify that during an interview with the Appellant, an Air Force enlisted man, at Andrews Air Force Base, Maryland, he “advised us that he was the subject that we wanted for this offense.” In this appeal, it is contended that the admission into evidence of this statement constituted reversible error since the State failed to establish that it was freely and voluntarily given by the Appellant.

.Prior to relating the statement given by the Appellant, the detective testified that he and a fellow officer went to the Base and advised the Military Police of their desire to question the Appellant with respect to a crime committed in Baltimore County. The officers were referred to a civilian employee of the Office of Special Investigation who thereupon sent for the Appellant and the officers were permitted to interview him in private. The detective asserted that he advised the Appellant that he was suspected of having committed the crime of attempted rape in Baltimore County on September 23, 1966, and “I read him his rights from the Miranda card that we are issued. * * * From this card, I read to the Defendant that he had the absolute right to remain silent. That anything he said would be used against him in a court of law. That he had a right to have an attorney before he was questioned, and present thereafter. If you cannot afford an attorney, one will be appointed for you by the Circuit Court for Baltimore County. On the back of the card I asked the following questions. ‘Do you understand each of the rights that I have explained to you ?' He advised me, yes. ‘Having these rights in mind, do you wish to talk to us now?’ He stated, yes. That is what I advised him.”

Counsel for the Appellant then objected to the officer testifying as to the statement thereafter given by the Appellant. The ground for the objection was that the Appellant had not been advised by the military authorities of his rights under the Uniform Code of Military Justice. In furtherance of this ground of objection the Appellant was called to the stand for the limited purpose of testifying to the fact that no member of the military establishment had advised him that he “had a right to consult with the Staff Judge Advocate General” or had advised him that he “did not have to talk to any civilian [police] officers.” The trial judge ruled that procedures required by the Uniform Code of Military Justice were not applicable to military personnel charged with a crime in Baltimore County and overruled the Appellant’s objection. The officer was then permitted to state that the Appellant “advised us that he was the subject we wanted for this offense.”

The Appellant has abandoned the ground of his objection to this testimony which he advanced in the lower court and now, for the first time, argues that although the Miranda warnings were given to the Appellant, the State failed to go further and establish formally “that no force or coercion was exercised by the officer obtaining the confession to cause the accused to confess” and that there was a failure to show that the statement was “not produced by inducements engendering either hope or fear.” Thus, it is argued, the State failed to meet the burden of proving that the statement by the Appellant was freely and voluntarily given.

In support of this contention the Appellant relies upon Jackson v. State, 209 Md. 390. We are of the opinion that his reliance upon Jackson is misplaced. In Robinson v. State, 225 Md. 300 a similar contention was advanced and in holding that Robinson’s statements were admissible, the Court said at 302:

“The Appellant now contends that these confessions or admissions were inadmissible because the State failed to meet the burden of proof that they were voluntary, citing Jackson v. State, 209 Md. 390, and Kier v. State, 213 Md. 556. Those cases are clearly distinguishable, for in them there was evidence of threats or intimidation which were virtually uncontradicted. In the instant case the accused took the stand, and at no time did he claim that any threats or promises were made. He admitted talking to Rieutenant Block and to Sergeant Jasper but denied making any admissions to them at all. Moreover, the record shows that no objections were made to the testimony of any of the officers on the ground that the confessions were involuntary. Cf. Clay v. State, 211 Md. 577, 586, and Moyer v. State, 225 Md. 156. See also Jackson v. State, 224 Md. 267, 270.”

In the case at bar, the Appellant took the stand and at no time did he claim that any threats or promises were made. In fact, unlike Robinson, he did not even deny making the statement. Moreover, the record shows that no objection was made to its admission on the ground that it was not freely and voluntarily given or that the State had failed to lay a proper foundation for its admission. We think that the rationale of Robinson, supra, that such conduct constituted a concession or a waiver is sound and applicable to the particular factual situation presented in this case.

This same rationale appears to have motivated the holding in Stewart v. State, 232 Md. 318, where it was contended that an admission by an accused was inadmissible if the product of an illegal arrest. The Court found the statements there to be in the nature of a confession and held that if they were otherwise voluntary, an illegal arrest did not invalidate their admissibility. In so holding, Judge Hammond (presently Chief Judge) pointed out that “There was no contention below and there is none here that Stewart’s replies * * * were not made entirely voluntarily, or were improperly induced.” It was held that since “the statements of Stewart were voluntarily made, without improper inducements, they were admissible in evidence against him.”

The Court of Appeals and this Court have held that where-a confession or admission is admitted into evidence without objection, an objection cannot be made for the first time on appeal. Tucker v. State, 237 Md. 422, 425; Kleinbart v. State, 2 Md. App. 183, 209; Gaudio and Bucci v. State, 1 Md. App. 455, 462-463. In Gaudio, this Court, speaking through Judge Orth, stated :

“* * * the admission was introduced in evidence without objection. The contention on appeal goes to the lack of the constitutionally required admonitions and not to the fact the admission, apart from this, was not voluntary. There was no allegation below nor on appeal that it was the product of force, violence, threats, inducements or promises. Since the appellants did not object to the introduction below on the ground that it was involuntarily made, the question is not properly before us. Maryland Rule 1085.”

While it is true that the Appellant interposed an objection to the admission of his statement at the time it was offered in evidence, his objection was not based upon the involuntariness of the statement or the failure of the State to show that it was obtained as a result of improper inducements; it was, as indicated above, on another ground altogether, namely, that the Appellant had not been advised of his rights under the Uniform Code of Military Justice. We are of the opinion that the basis for the rule in Tucker, Kleinbart and Gaudio is equally applicable in the case at bar. Accordingly, the Appellant, having failed to object to the admission of his statement on the ground of involuntariness or improper inducements, cannot be beard to assert in this appeal, for the first time, that the State failed to meet its burden of proving the voluntariness of the statement or that it failed to lay a proper foundation for its admission.

In any event, it is for the trial court to determine whether a confession is freely and voluntarily given and its determination will not be disturbed on appeal in the absence of a showing that its discretion was abused. Johnson v. State, 1 Md. App. 217; Harris v. State, 1 Md. App. 318; Thomas v. State, 2 Md. App. 502. The Appellant did not contend below, nor does he contend in this Court, that the statement was, in fact, involuntarily given by him. Under the totality of circumstances here present, we find no abuse of the lower court’s discretion in adimitting the statement of the Appellant.

Judgment affirmed.

      . The dissenting opinion by Judge Prescott (later Chief Judge) makes clear that the usual questions concerning threats, promises or inducements were not propounded by the State.


text:
    JOHN ARCHIE MALLOY v. STATE OF MARYLAND
    [No. 299,
    September Term, 1967.]

      Decided June 21, 1968.

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

      John W. Mitchell for appellant.

      Id. Edgar Lentz, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and John J. Garrity, Assistant Stale’s Attorney for Prince George’s County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

John Archie Malloy, the appellant, was convicted of petty larceny in a jury trial in the Circuit Court for Prince George’s County. He was sentenced to the jurisdiction of the Department of Correction for six months. On appeal he contends that his motion for judgment of acquittal should have been granted, and that there was an error in the instructions to the jury.

There was evidence from which the jury could find that: On August 7, 1967, a little after 2:00 P.M., Malloy, with three other men, Jewell, Webster and Blackledge, entered a Drug Fair Store on Greenbelt Road in Prince George’s County, Maryland. Malloy and Jewell went to the sunglass rack where they proceeded to look over the merchandise and try on various sunglasses, staying there ten or fifteen minutes. Webster, another of the three men, was between the first two and the store’s office. Blackledge entered the office, took some money from the safe, and climbed over a wall separating the office from the store. He ran some 400 yards to another store, Klein’s, which he entered. Watts, the manager of the Drug Fair Store, observed Jewell and Malloy together at the sunglass rack, as well as Webster nearby. Their actions attracted his attention. Later he observed Blackledge’s head appearing over the top of the office wall and started toward him, going between Jewell and Malloy but was blocked by Webster whom he pushed into another sunglass rack. Webster then grabbed the manager and said, “Man, what are you trying to do ?” Malloy pulled the manager from behind while the manager was engaged in the scuffle.

Jewell, Webster and Malloy left the Drug Fair, got into their automobile, drove to Klein’s and sounded the horn of the car just as Blackledge entered Klein’s. The other three also entered Klein’s where all four were apprehended. Malloy, upon questioning by the police, denied any knowledge of the crime or that he knew Blackledge. Blackledge on the witness stand admitted knowing the other three but denied they were in any way involved in the larceny which he admitted.

I Instructions

Malloy’s defense was that he was an innocent bystander and that, although his actions in interfering with the manager undoubtedly aided in the escape of Blackledge, that the aiding was without knowledge that a crime had been committed. Against this background the instructions of the court on the subject of the specific crime contained only the following:

“The defendant, John Archie Malloy, has been charged on one count for the alleged crime of petty larceny. Petty larceny is the unlawful taking by trespass of the personal property of another with the intention to deprive the owner thereof permanently.”
“At common law there are no accessories to a misdemeanor, but all persons who aid or encourage the commission of a misdemeanor are chargeable as principals, and the fact that this man has been charged with the crime by information is not evidence * *

Malloy excepted to these portions of the charge in the following language:

“Mr. Mitchell: The defendant moves the Court to instruct the jury that in order for the defendant to be found guilty of the crime charged under the facts in this case it must be shown and be held that at the time of the commission of the offense a community of criminal intention existed with the defendant or with Black-ledge, the actual perpetrator of the offense, or that he aided or abetted Blackledge in the commission of the offense. Conversely, if the jury should fail to find that Malloy obtained a community of criminal intent with Blackledge at the time the offense was committed or if they should find that he failed to aid or abet the same then their verdict should be not guilty. That is the same thing I raised in chambers.”

Counsel on appeal concedes that his exception was inartfully worded but he contends, and we agree, that it adequately brought to the court’s attention the fact that his instruction did not cover the essential element of guilty knowledge. The proposition that the crime of aiding and abetting a larceny requires guilty knowledge hardly requires a citation of authority; see however, Anello v. State, 201 Md. 164, 93 A. 2d 71, 73.

We hold that the court’s instruction should have included the fact that the aiding and abetting must have been done with guilty knowledge, actual or constructive. It is incumbent upon the court, when requested, to give an advisory instruction on every essential point of law supported by the evidence. Bruce v. State, 218 Md. 87, 97, 145 A. 2d 428, Huber v. State, 2 Md. App. 245, 258, 234 A. 2d 264 and Tipton v. State, 1 Md. App. 556, 561, 232 A. 2d 289.

II Sufficiency of the Evidence

We have no difficulty in holding that the evidence was sufficient to support the conviction and that the motion for judgment of acquittal should have been denied.

Judgment reversed and case remanded for a new trial; costs to be paid by the County Commissioners of Prince George’s County.