author: Orth, J.,

text:
    GARY MONTGOMERY AND MARION L. MONTGOMERY v. STATE OF MARYLAND
    [No. 238,
    September Term, 1967.]

      Decided July 2, 1968.

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

      Robert L. Carson for appellants.

      Bernard L. SUbert, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Robert W. Baker, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellants were indicted on 14 October 1964, tried in the Criminal Court of Baltimore on 25 November 1964, convicted by the court without a jury of robbery with a deadly weapon and each sentenced to imprisonment for a term of 20 years. Each noted a timely appeal. On 12 January 1966 the Court of Appeals remanded the cases for further proceedings under the decision in Schowgurow v. State, 240 Md. 121 and its related decisions. On 10 March 1966 each elected to have the indictment against him dismissed. They remained in custody, incarcerated in a penal institution of this State under other convictions, Marion Montgomery serving a sentence of 10 years imposed 18 August 1965 and Gary Montgomery serving a sentence of 5 years imposed 28 June 1965. Each appellant was presented and reindicted on 22 March 1967. The record shows that the capias issued upon presentment was not executed but noted “In Jail” and indicates also that a detainer was filed against each on 28 March 1967. On the day the appellants were reindicted each swore to a motion in proper person captioned “My Special Motion to Nol Prosse”, and apparently the motions were mailed on that date to the Chief Judge of the Supreme Bench of Baltimore City. They were referred to Judge J. Harold Grady who transmitted them to the Clerk of the Criminal Court of Baltimore, characterizing them as motions “in the nature of Motions for a Speedy Trial” and directing that they be filed and docketed. The docket entries show them as “Motion for a Speedy Trial filed in proper person” on 29 March 1967. Judge Grady sent a copy of his letter transmitting the motions to the Clerk of the Criminal Court to each appellant and apparently in answer to the construction placed on them by Judge Grady, each appellant swore to an identical “Motion to Dismiss” on 31 March 1967 which stated that the •court was “without jurisdiction pursuant to a speedy trial, as petitioner did not request a speedy trial but a motion to nol prosse in view of the State failed to comply with Article 21 Md. Const., for over fifteen months. This is unconstitutional— State is without jurisdiction. He now motions that charges be dismissed immediately and without delay.” These motions are in the record but do not appear as filed in the docket entries. On 4 April 1967 the appellants were brought into court for arraignment and arraignment was postponed until counsel was .appointed for them. Appearance of counsel was entered on 11 May 1967. That same day they were in court for trial and a notation on the face of the indictment shows that the case was postponed by mutual consent. Also on 11 May a “Motion to Dismiss Indictment” was filed on behalf of each appellant stating as the ground therefor that the indictment “did not comply with the directive from the Court of Appeals in that your Petitioners were to be re-indicted within a reasonable time.” A document entitled “Open Memorandum,” dated 22 May 1967, was prepared in proper person, signed by each appellant and addressed to Judge Grady, stating that they had been denied a speedy trial and complaining about their counsel and apparently requesting that other counsel be appointed. Judge Grady wrote them on 7 June 1967 that the motion for a speedy trial had been sent to the Clerk of the Court and the State’s Attorney, informed them that trial had been set for 28 June 1967 and advised them to bring their motions for a speedy trial to the attention of the trial judge at the time of trial. This document appears in the docket entries as a motion for a speedy trial filed 7 June 1967 as to Gary Montgomery, but it was signed by each appellant and clearly was submitted on behalf of both. On 28 June 1967 the case came on for trial before Judge Thomas J. Kenney, presiding in the Criminal Court of Baltimore and at the appellants’ request a hearing was held on the issues of denial of a speedy trial and dismissal of the indictment in order to dispose of them prior to a trial on the merits.

At the hearing no witnesses were offered or evidence adduced. The appellants did not attempt to show that they were in fact prejudiced or that there was a strong possibility that their defense was hampered by delay in their trial. They relied on the history of the case as shown by the record to support their contentions arguing that the indictment against them should be dismissed because the State, in re-indicting them, took more than a reasonable time allowed it in the order of remand of the Court of Appeals and because they were denied a speedy trial. The State’s explanation for the delay in re-indictment seemed to be, in the words of the hearing court, “that the Schowgurow decision (11 October 1965) caused havoc in the State’s Attorney’s office in Baltimore City, and that as late as January of 1967, there were some 240 cases still awaiting re-indictment because the defendants had requested it, and at least another 100 cases that were pending on appeal, apparently in various situations. This it was stated, coupled with the 4,000 or 5,000 cases handled in the normal course of business in the office might have resulted in this particular case being mislaid and overlooked for a period of time”. The hearing judge denied all motions to dismiss the indictment by order of 28 September 1967 for reasons stated in a carefully considered and thorough memorandum accompanying the order.

On appeal from the order the appellants contend that the court erred in denying the motions to dismiss the indictments for the reasons that:

I the delay in re-indictment constituted:

1) a violation of the order of remand of the Court of Appeals ; and

2) a denial of a speedy trial.

II the delay in trial from the date of the original indictment constituted a denial of a speedy trial.

I

1) The order of the Court of Appeals remanding the case for further proceedings provided in part here relevant:

“In the event that the appellant (s) should exercise the right to challenge the unlawful organization of the grand and/or petit jury, the motion shall be granted and the present conviction thereby set aside; and the State shall be allowed a reasonable time to refer its charges to a properly constituted grand and/or petit jury for a criminal prosecution”.

The Court of Appeals did not designate a specific period within which the State was to refer its charges to a properly constituted grand jury but allowed a “reasonable time” for it to do so. What is a reasonable time depends on the circumstances present in a particular situation. We cannot close our eyes to the problems, administrative, legal and practical, confronting the prosecuting authorities as a result of the Schowgurow decision, and especially in Baltimore City where they were impressed upon a normal heavy case load. All the defendants entitled to make an election under the decision could not be afforded the opportunity to do so at the same time and all who elected to invalidate their indictments returned by an improperly constituted grand jury or to void their trials by reason of conviction by an improperly constituted petit jury could not be forthwith reindicted and retried. Even after procedures were established to comply with the decision some selectivity in the order of priority was inevitable and we cannot say that it was improper to give a lower priority to those incarcerated by reason of a prior conviction of non-related crimes than to those in custody or on bail only on the offense for which the indictment or trial had been invalidated. We think the period from 12 January 1966, when the order of remand was issued, to 10 March 1966, when the appellants were afforded the opportunity to elect under Schowgurow was clearly reasonable. And while we cannot condone the case being mislaid or overlooked, if in fact it was, we agree with the finding of the hearing judge that the period from 10 March 1966 to 22 March 1967, when they were reindicted, was not unreasonable under all the facts and circumstances. We note that the appellants remained silent from the date of their election to invalidate the indictment to the date they were indicted, although they could have sought an immediate trial, if they desired it, under the provisions of Md. Rule, 709. And we note further that the order of remand provided no sanction upon non-compliance by the State. We cannot presume that the Court of Appeals intended the sanction to be dismissal of the charges. We think it fair to assume that the Court of Appeals couched its order in terms of “a reasonable time” rather than a designated time because it foresaw the inherent problems. We have no doubt that upon request to the authorities action to obtain indictment would have been given a higher priority. It may be argued that if the State desires to obtain an indictment it must take the requisite action to do so but the argument loses some force when made by an accused simply standing mute during a delay of which he later complains. Justice is the servant of the public as well as the accused and by the rationale of Rule 709 it is recognized that some burden is properly on the accused who seeks an immediate trial. We hold that there was no violation of the order of the Court of Appeals-compelling dismissal of the indictment.

2) The Court of Appeals and this Court have held in cases-where the contention of denial of a speedy trial stemmed from delay in indictment that the answer is that until the Grand Jury acted there was no case to be tried. Keyes v. State, 236 Md. 74, 81; Osborne v. State, 3 Md. App. 161, 163. See Stevenson v. State, 4 Md. App. 1, 11; Fabian v. State, 3 Md. App. 270, 285, note 6. The appellants urge that Miller v. State, 239 Md. 136, Price v. State, 235 Md. 295 and Brown v. State, 1 Md. App. 571 cited in Osborne are not factually apposite and thus do not support either its holding or its rationale. But those cases accept the general rule stated in Keyes which is factually apposite. In Keyes the accused was apprehended and taken in custody on a juvenile warrant on 14 November 1961. Shortly thereafter, upon being taken before the juvenile court, it waived jurisdiction and ordered him held for regular criminal procedure. He was given a preliminary hearing before a magistrate and held for action of the grand jury. In December 1961 after a mental examination by Spring Grove State Hospital he was released on bail. Through some inadvertence in the office of the State’s Attorney his case was not presented to the grand jury until November 1962 and he was indicted on 9 November 1962. It was in disposing of the contention that the delay for the period December 1961 to November 1962 denied him a speedy trial that the Court said that “until the Grand Jury acted there was no case to be tried”, citing Reddick v. State, 219 Md. 95. We do not depart from the rule stated in Keyes and Osborne and are not persuaded to the contrary by Pitts v. North Carolina, 395 F. 2d 182 (4th Cir. 1968), or Hanrahan v. United States, 348 F. 2d 363 (D. C. Cir. 1965) cited by the appellants to support their allegation that delay is not computed from the date of the offense nor the date of the indictment but from the formal initiation of criminal proceedings, for example the swearing out of the arrest warrant or the arrest. But in Pitts there was a delay of almost 16 years between the initiation of the prosecution and the conviction for armed robbery during which period the authorities knew the whereabouts of the accused at all times. The accused did not know that a detainer had been placed against him until more than 7 years after an arrest warrant was sworn out and the detainer placed and no attempt was made to bring him to trial until almost 16 years later. He testified that he was unable to recall where he was at the time he -was alleged to have committed the crime. In Hanrahan the defendants were indicted for mail fraud in the Puerto Rice District, the case was transferred to the District of Columbia for trial and after a trial date was scheduled, after nearly 4 years delay, they w'ere re-indicted, charging the same mail scheme but different mailing dates. The court rejected the contention that any delay should be computed only from the date of the second indictment, but it remanded the case for a finding whether the delay attributable to the prosecutor was necessary for a fair and just prosecution and if it was not, prejudice to the defendants would be considered in determining the violation of Sixth Amendment rights. We consider those rulings in the frame of reference of their facts. Nor do we feel compelled to depart from the rule followed in this State by the opinion in Smith v. United States, 360 U. S. 1. There the issue was not the denial of a speedy trial and the quote therefrom in the appellant’s brief was not only dictum but circumscribed by its language.

“* * * if, contrary to sound judicial administration in our federal system, arrest and incarceration are followed by inordinate delay prior to indictment, a defendant may, under appropriate circumstances, invoke the protection of the Sixth Amendment”.
(emphasis added.) p. 10.

Under no circumstances in the instant case would it be proper to compute the time in considering delay from the time of their initial prosecution for they were then tried and convicted without complaint as to delay. And if delay is computed from 10 March 1966 when they elected to invalidate their convictions, we do not think the delay inordinate or the circumstances appropriate to invoke the Sixth Amendment even if we followed the rule urged by the appellants.

Adhering to the rule that until the grand jury acted there was no case to be tried and thus there could be no denial of a speedy trial, does not stand a defendant defenseless against unreasonable, oppressive and capricious delay on the part of the State in obtaining an indictment. Not only does the defendant, in appropriate circumstances, have means to obtain an early trial, if he desires to invoke them, under Md. Rule, 709 and Md. Code (1967 Repl. Vol.) Art. 27, § 616A-S (Interstate and Intrastate Detainers) but such delay may constitute a denial of due process of law, even though we find no such denial in the facts and circumstances of the instant case.

We hold that the delay in obtaining reindictment was not a •denial of a speedy trial.

II

As we understand the contention of the appellants they do not urge that delay in trial from their reindictment, standing .alone, constitutes a denial of a speedy trial, but they argue that this period should be considered along with the entire delay from the date of their original indictment and that the resulting period of almost 4 years constituted such denial. But it is only that delay which can reasonably be charged to the State that is •computed in determining whether a defendant has been denied a speedy trial. Stevenson v. State, supra, 11. We have stated that the period from the original indictment to 10 March 1966 when the appellants invalidated their convictions cannot be charged to the State and we have found that from the period 10 March 1966 to 22 March 1967 when they were reindicted cannot be considered in determining whether a speedy trial was denied because during that period there was no case to be tried. There remains to be considered only the period commencing 22 March 1967 to date. Delay in trial for this period cannot be charged to the State as it was ready for trial within such time after the reindictment that there was no delay in the constitutional sense. Further such delay was not caused by the State. Action was taken for the appointment of counsel for them upon postponement of their arraignment on 4 April 1967, counsel was appointed with reasonable promptness and delay in trial henceforth was by the appellants’ own making.

Considering the length of the delay, the reasons for the delay, prejudice to the accused and, with regard to the period from reindictment, waiver by the accused, we hold that the appellants were not denied a speedy trial.

Order denying the motions to dismiss the indictment affirmed.

      . An appeal will lie, prior to a trial on the merits, from a denial of a motion alleging a violation of the constitutional right to a speedy trial. Brown v. State, 2 Md. App. 388, 393; Allen v. State, 1 Md. App. 249, 252.

      . The appellants were committed to the custody of the Warden of the Maryland Penitentiary in default of $40,000 bail upon their election to invalidate the indictment on 10 March 1966. But as stated they were then serving sentences imposed on convictions of another offense and were incarcerated during the period of which they complain for that reason.

      . The grand jury may act within the applicable period of limitations. Osborne v. State, supra, 163.

        . Appearance of counsel was entered 11 May 1967 but it appears that the appointment was made prior to that date.

      . The hearing judge noted: “An examination of the transcript at the original trial discloses that the Defendants elected to have their case tried before the Court without a jury, and, in addition, that the Defendants adduced no testimony whatsoever. Neither defendant took the stand and neither Defendant called any witnesses in his own defense.”


source: Caselaw Access Project

author: Murphy, C. J.,

license: Public Domain

text:
    JOHN PRESTON SCOTT AND BETTY LEE SCOTT v. STATE OF MARYLAND
    [No. 264,
    September Term, 1967.]

      Decided July 2, 1968.

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

      Sherman W. West for appellants.

      I'red Oken, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Donald Needle, Assistant Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and James B. Kenkel, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

The appellants John Preston Scott and his wife Betty Lee Scott were convicted by a jury in the Circuit Court for Prince George’s County under one indictment charging unlawful possession of explosives, six indictments charging receiving stolen goods over the value of $100.00, and six indictments charging receiving stolen goods under the value of $100.00. Each appellant was fined $100.00 for unlawfully possessing the explosives. John Scott was sentenced to the Maryland Penitentiary for a total of twenty-three years on the receiving convictions. Betty Lee Scott was sentenced to one year under each of the twelve receiving convictions. Her sentence was then suspended and she was placed on probation for a period of three years. On this appeal from these judgments, the appellants advance twenty-seven reasons for reversal of their convictions, principal among which is that the court erred in failing to grant their pre-trial motion to quash a search warrant and suppress evidence seized by the police from their home and also in admitting such evidence at the trial over their objection.

The pertinent facts are these: On February 2, 1967 Detective Albert Kulle of the Prince George’s County Police Department made application for a search warrant, alleging therein that there was probable cause to believe that there were stolen goods in appellants’ home at 5303 Cable Avenue, Auth Village, Camp ■Springs, Maryland. Detective Kulle alleged in the application for the warrant that a Bell & Howell movie projector, Serial '$ BJ-14809, and a Magnavox stereo, Serial jf 3059338, had been stolen on January 13, 1967 from designated premises located, respectively, in Hillside and Beltsville, Maryland. In his application, Detective Kulle asserted that the “grounds for the search •and the basis of probable cause” were contained in his accompanying affidavit, as well as the appended affidavits of Detectives Ross and Farran, also of the Prince George’s County Police Department.

In his affidavit Detective Kulle stated that he placed himself in a position to observe the Branch Avenue coffee shop in Silver Hill, Maryland, a shop which he knew to be operated by John Scott, an individual who had previously been convicted of re•ceiving stolen goods. Kulle’s affidavit recited the following observations personally made by him:

January 18,1967
At approximately noon, Dominic Emelio and Brian Dunleavy drove up to Scott’s shop in a red and white Pontiac and carried into the shop what appeared to be a color television set which he, the affiant, believed had been reported stolen that day from a Langley Park address; that at 4:10 p.m. a red Volkswagen operated by Thomas Beavers, a convicted housebreaker, arrived at the rear of Scott’s shop; that Scott and Beavers carried a portable television, a suitcase, and an item under a red and white bedspread from the Volkswagen into the rear of the shop, after which Beavers drove off; that at 5 :30 p.m. Scott and another man loaded these same items into a 1967 Ford pick-up truck, known to be registered to Scott’s wife Betty; that this vehicle, operated by still another man, then drove off to the residence of Charles Bishop at 5376 Auth Road, Camp Springs, Maryland, Bishop being an individual believed by the affiant to have been previously involved with Scott in receiving stolen goods; and that the vehicle was kept “under observation” until 6:30 p.m. that day and thereafter was followed by the affiant to appellants’ home.
January 19,1967
In the afternoon the red Volkswagen operated by Beavers arrived at the rear of Scott’s shop; that items were removed therefrom by Scott and Beavers, “under a yellow bedspread” and “in a green pillow case” and taken into the shop, after which Beavers drove off; that later that afternoon a green 1966 Chevrolet, operated by a man, drove to the rear of Scott’s shop and the operator carried a white portable television into the shop; that later the same day, a green 1959 Chevrolet arrived at Scott’s shop and another portable television was carried into the shop; that still later the same day, a 1957 Chrysler arrived at the rear of Scott’s shop and three portable televisions were carried into the shop; that at 5 :00 p.m. a 1961 Ford sedan, known to be registered to Betty Scott, and driven by a man, arrived at Scott’s shop and the man loaded a portable television into the trunk of the 1961 Ford and several other items under bedspreads; that John Scott then drove the 1961 Ford to his residence, arriving there at 6:10 p.m., at which time Scott and the man with him unloaded the items from the 1961 Ford and placed them in the Ford pick-up truck, which was then parked on the street in front of Scott’s home.
January 20,1967
At 12:45 p.m. the Ford pick-up truck was driven to Scott’s shop; that at 2:55 p.m. a 1967 Chevrolet operated by a man also came to Scott’s shop, at which time Scott transferred six portable television sets and a black zipper bag from the Ford pick-up' truck to the Chevrolet.
January 23,1967
That at 10:25 a.m. a 1956 Oldsmobile operated by Roger Unger and Michael Errico, both known criminals, drove to Scott’s shop, at which time Scott removed a portable television from the Oldsmobile and placed it on the Ford pick-up truck. ■
January 24,1967
At 11:15 a.m. a 1957 Pontiac operated by Emelio and Dunleavy drove to Scott’s shop and Emelio carried a portable television into the shop.
January 25,1967
At 11:40 a.m. a 1962 Cadillac operated by John Mealy came to Scott’s shop and Mealy carried an “item” into the shop; that at 12:10 p.m. a 1957 Pontiac occupied by Emelio, Dunleavy and John Hazel came to the shop and that a portable television was taken from this vehicle and placed in the rear of the Ford pick-up truck.
January 26,1967
At 11:50 a.m. an International Carry-All van driven by George Creighton, a convicted housebreaker, drove to Scott’s shop; that Scott looked into the van, a conversation ensued between the two men, and thereafter another man came out of the shop and drove off in the van.

Detective Ross’s affidavit recited that on January 26, 1967 he arrested Dominic Emelio who confessed that he was responsible for thirty housebreakings in Prince George’s County; that Emelio stated that he sold the stolen goods to John Scott, at Scott’s shop; and that he, Emelio, and Dunleavy stole a black portable RCA television on January 24 and sold it to Scott at his shop that same day, Scott knowing that the set was stolen. In his affidavit, Ross further stated that he verified the fact of such housebreakings and also stated that the transaction of January 24 between Scott and Emelio had been photographed. The photograph was appended to Ross’s affidavit.

Detective Parran recited in his affidavit that on January 13, 1967 at 4:30 p.m. he was in the rear of Scott’s coffee shop and saw Calvin Smith and Thomas Johnson, both convicted housebreakers, inside the shop with Scott; that he entered the shop and observed a Bell & Howell movie projector, Serial % BJ-14809, a Kodak camera, and one Magnavox stereo, Serial % 3059338; that Scott told him that he had purchased these items earlier that day; that he, Detective Farran, ascertained later that day that these items had been stolen and that on January 14, he returned to Scott’s shop and found that these items were no longer there, Scott stating at that time that Johnson and Smith took the property away and that he, Scott, had not bought it from them.

The application for the search warrant concluded by requesting issuance of a warrant to search the appellants’ house and to particularly seize the aforementioned Bell & Howell movie projector and the Magnavox stereo. As issued, the search warrant authorized the search of appellants’ home and the seizure of the Bell & Howell movie projector and the Magnavox stereo, and further directed the seizure of “all paraphenalia used in or incident to the operation or conduct of said criminal activities” (receiving stolen goods), and also authorized seizure of “any evidence that pertains to said criminal activities.”

Acting under authority of the search warrant, the police searched appellants’ home on February 3, 1967. While they did not locate either the Bell & Howell movie projector or the Magnavox stereo, they did seize a large number of other items of personal property found in the house, including 107 sticks of dynamite. The seized items were removed in two paddy wagons. At the time of the seizure, the officers had no specific information that any of the items seized had actually been stolen. A four-page inventory of the seized articles was made and they were photographed at the police station. The police then checked their records and contacted persons whose homes had been burglarized. A number of persons so contacted came to the police station and identified articles seized from appellants’ home as having been stolen from them. It was upon this basis that appellants were indicted for twelve separate offenses of receiving stolen goods, and one case of unlawful possession of dynamite. As heretofore indicated, appellants’ motion to quash the search warrant and suppress the evidence was overruled and, at the trial, the items seized at the appellants’ home were introduced in evidence against them over their objection.

Appellants contend that the search and seizure was unlawful since the warrant authorizing a search of their home was issued without probable cause to believe that any unlawful activity ever took place in their home, or that their home contained any items subject to seizure.

It is, of course, well settled that the presence or absence of probable cause to support the search warrant must be determined solely from the allegations of the application for the warrant. Tucker v. State, 244 Md. 488; Henderson v. State, 243 Md. 342; Burrell v. State, 207 Md. 278; Scarborough v. State, 3 Md. App. 208; Clayton v. State, 1 Md. App. 500. In other words, the court’s determination of the existence of probable cause must be confined solely to the affidavit itself, and evidence outside the affidavit, no matter by whom produced or how, is not relevant to the inquiry of probable cause. Smith v. State, 191 Md. 329; Sessoms v. State, 3 Md. App. 293.

We observed in Salmon v. State, 2 Md. App. 513, that the Maryland search warrant statute, Maryland Code, Article 27, Section 551, provides for the issuance of search warrants on proper oath or affirmation where probable cause exists to believe that any misdemeanor or felony is being committed by any individual or upon any premises or that any property subject to seizure under the criminal laws of the State is situated or located on any such person or in any such premises. It is upon the existence of such probable cause, and upon no other basis, that the statute authorizes a search for specifically designated property unlawfully obtained, or held, or of evidence of the commission of the crime. As the search warrant is issued for the basic purpose of making a search, the probable cause necessary to support its issuance requires a proper showing not only that a crime has been or is being committed, but also that the evidence of the crime is upon the person or within the place or thing to be searched. Salmon v. State, supra, at page 519. See also Kist v. State, 4 Md. App. 282; Frey v. State, 3 Md. App. 38.

In its constitutional sense, and as used in the Maryland search warrant statute, “probable cause” is less than certainty or demonstration but more than suspicion or possibility. Henderson v. State, supra; Henson v. State, 236 Md. 518. In determining whether probable cause exists, consideration may be given to the special significance which objects, happenings and individuals may have conveyed to the trained, experienced, and knowledgeable police officers who apply for the warrant. Henson v. State, supra, at page 521, and cases there cited. In this connection, it is settled that when a search is based upon a magistrate’s, rather than a police officer’s, determination of probable cause, the reviewing courts will accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant. Aguilar v. Texas, 378 U. S. 108; Jones v. United States, 362 U. S. 257. In other words, search warrants must be tested and interpreted by courts in a commonsense and realistic fashion, since a grudging or negative attitude by reviewing courts towards warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting; and although “in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” United States v. Ventresca, 380 U. S. 102, 108. To like effect, see Tucker v. State, supra; Henderson v. State, supra; Scott v. State, 1 Md. App. 481. But this does not mean that probable cause can be made out by affidavits which are purely conclusory, United States v. Ventresca, supra, at page 108, or which fail to show any of the underlying circumstances from which it was concluded that probable cause existed to believe, inter alia, that a crime was being committed on the premises to be searched, or that the fruits or evidence of such crime were located upon such premises. Frey v. State, supra.

Tested by these standards, and re-emphasizing the principle that the presence or absence of probable cause to support the search warrant must be determined solely from the allegations of the application for the warrant, together with its accompanying affidavits, we turn now to the question of whether there was probable cause shown in the warrant to justify a search of the appellants’ home.

There is not even an allegation in the application for the warrant, or in the affidavits appended thereto, that the officers, or anyone else, ever observed the Magnavox stereo or the Bell & Howell movie projector being taken in or out of appellants’ home, nor is there any allegation that anyone had any information that these items were ever located or seen in appellants’ home. The only statement concerning these items was contained in Detective Farran’s affidavit wherein he stated that he observed such items in Scott’s coffee shop on January 13, 1967, that he subsequently learned that they were stolen, but was unable to find them in Scott’s shop when he returned the following day. There is nothing in Farran’s affidavit connecting these items with appellants’ home, or even with any vehicle seen leaving the coffee shop and going to appellants’ home. That the allegations of the application for the search warrant may have been sufficient to show probable cause to believe that John Scott was receiving stolen goods at his coffee shop, does not of itself constitute probable cause to believe that such stolen goods were subsequently taken into the Scott home. Neither does the fact, standing alone, that Scott or his employee, on two occasions, drove vehicles registered to Mrs. Scott, and containing stolen articles, to the Scott home, establish probable cause that such goods were subsequently taken into the home. Indeed, in Detective Kulle’s affidavit, there is not even a faint inkling that the contents of these vehicles were taken into the Scott home. As Kulle had personally observed these vehicles at the Scott home, the inference to be drawn from the absence of any allegation that the stolen articles were removed into the home is that they were not in fact taken into the Scott home. Compare Rugendorf v. United States, 376 U. S. 528, Frey v. State, supra, and Sessoms v. State, supra, all cases involving a search warrant for a home where the application for the warrant detailed underlying circumstances demonstrating the existence of probable cause to believe that the items to be seized were located within the home.

In Nathanson v. United States, 290 U. S. 41, a warrant was issued upon the sworn allegation that the affiant suspected and believed that certain merchandise was in a specified dwelling. The court noted at page 46 that the affidavit “went upon a mere affirmation of suspicion and belief without any statement of adequate supporting facts.” It held: (page 47)

“Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts and circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough.”

We think Nathanson is applicable to the facts of this case. At most, the application for the warrant contained a conclusory statement that the Magnavox stereo and the Bell & Howell movie projector, as well as other unspecified stolen articles were contained within the Scott home, without any adequate supporting facts whatsoever demonstrating the basis for such belief. That this is not sufficient is abundantly clear.

The State contends that while it is the general rule that property other than that for which a search is being made under the authority of a search warrant cannot be seized where it does not come within the description of the warrant (Brooks v. State, 235 Md. 23), an exception to that rule exists where officers lawfully on the premises discover other property which they have reasonable cause to believe has been stolen (Anglin v. State, 1 Md. App. 85). The flaw in the State’s position is that the officers were unlawfully, not lawfully, conducting a search of appellants’ home, the search warrant being invalid for reasons heretofore stated. Since the entry into the appellants’ home was not authorized, and the search was not lawful, the fact that during the unlawful search the officers may have developed probable cause to believe that certain of the articles observed in the home were stolen does not authorize the admission thereof in evidence against appellants at their trial. Compare Harris v. United States, 331 U. S. 145; Crowe and Williston v. State, 240 Md. 144; Dailey v. State, 234 Md. 325; Beale v. State, 230 Md. 182; Dorsey and Gladden v. State, 2 Md. App. 40.

We thus conclude that there were no sufficient allegations in the application for the search warrant, or in its accompanying affidavits, to show that the evidence of the crime sought to be seized was within the place to be searched. Accordingly, we hold that the lower court erred in overruling appellants’ pretrial motion to quash the search warrant and suppress the evidence, and in admitting the seized articles into evidence at the trial over appellants’ objection.

In view of our finding, we need not consider the other contentions raised by the appellants.

Judgments reversed; cases remanded for a new trial.


author: Per Curiam.

text:
    LORENZO DAVIS, JR., v. STATE OF MARYLAND
    [No. 311,
    September Term, 1967.]

      Decided July 2, 1968.

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

      Morris Lee Kaplan, with whom was Michael Lee Kaplan on the brief, for appellant.

      H. Edgar Lents, Assistant Attorney General, with whom were Erancis B. Burch, Attorney General, Donald Needle, Assistant Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Edward J. Angeletti, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

Lorenzo Davis, the appellant, was tried in the Criminal Court of Baltimore before Judge Joseph Carter and a jury under a series of indictments stemming from events which occurred on November 6, 1965. He was found guilty under the first and fifth counts of Indictment No. 5179 charging, respectively, armed robbery and assault upon Henry Naiditch. He was also found guilty as follows: Under the first count of Indictment No. 5180 charging armed robbery of Edward Zorn; under the second count of Indictment No. 5181 charging assault upon Francis Kuhn; under the first count of Indictment No. 5182 charging the carrying of a concealed weapon. Consecutive sentences, totaling 50 years, were imposed.

Naiditch, the owner of a grocery store in Baltimore City, testified that on November 6, 1965, at approximately 8:15 A.M., he and others who were present in his store at that time were robbed and assaulted by two armed men. Davis was armed with a sawed off shotgun, and his accomplice was armed with ■a pistol. A customer, Francis Kuhn, was hit in the head several times with the butt of the shotgun by Davis. Naiditch was similarly beaten; and the store was ransacked. Over $2,000 was taken from the cash register and the person of Naiditch, as was a pistol owned by him which was kept near the cash register. Davis was identified by Mr. Naiditch at the trial while seated among other persons in the courtroom although he did not identify him at a police lineup held several days after the robbery.

Francis Kuhn testified that he was hit in the head four or five times with the shotgun; that he received a fractured skull from the beating; and that Davis, seated among the spectators, was his assailant. Kuhn was unable to attend any lineup because of his injuries.

Edward Zorn, an employee of the Southern Fuel Company, testified that he was shoved and robbed by Davis. His wallet containing $113 and also his car. keys were taken. Zorn identified Davis at the trial, and also had identified him at a police lineup held several days after the offense.

Mary F. Watty testified that as she was about to enter the Naiditch grocery store on the date in question, Davis and another man were leaving the premises. Davis was in the process of putting a shotgun underneath his coat at the time. She had previously known Davis and identified him both at the time of trial and at a police lineup. She stated that she also recognized Davis’ accomplice, Bernard Jones, and knew him by name. She immediately reported to the police the name of the accomplice, Jones, but stated that she did not, at that time, remember Davis’ last name, although she did recall his first name. She admitted that she had at one time accused Jones of burglarizing her apartment. Davis denied any involvement with the crime and alleged that Mary Watty had a grudge against Jones. He presented three alibi witnesses.

On appeal he presents several contentions which are hereinafter set forth.

He first alleges that the state should have been required to elect which counts of the indictments it wanted to present to the jury where there was a merger of counts. Although he cites a number of cases none of them is appropriate to the facts of the present case. He specifically complains that the fifth count of Indictment No. 5179 merged with the first count because assault and battery was an essential element of robbery with a deadly weapon. In Tender v. State, 2 Md. App. 692 at 698, 237 A. 2d 65, this Court discussed the doctrine of merger in detail and found specifically that the offense of assault did not merge into the greater offense of robbery with a deadly weapon where there was sufficient evidence for the trial court to find that the assault was separate and distinct from the robbery. We think the facts of the present case indicate clearly that there was sufficient evidence for the trier of facts to find the assault on Henry Naiditch was separate and distinct from the assault with intent to rob.

Davis alleges error in the denial of his motion for a mistrial based on an allegation that the state had exercised its peremptory challenges in such a way as to strike members of the Negro race from the panel. The motion has no substance in fact. The transcript shows that the state struck four female members of the panel after Davis’ challenges had been completely used up, and that these prospective jurors were replaced by males, two of whom were Negroes; and that at that point the state still had two unused challenges which were never used. The prose:cuor explained t¡hat he was trying to remove female jurors from the panel.

Davis contends that his second motion for a mistrial should have been granted because the following occurred in the presence of the jury;

“DEFENDANT: Is this the jury that is going to hear my case?
“THE COURT: Yes.
“DEFENDANT: Then [sic] must be going to hear his case, because ain’t going to hear mine.
“OFFICER: Take it easy.
“DEFENDANT: Don’t care what you say, what I said I meant.
“THE COURT: Wait a minute, bring him back.
“(Defendant walks out, brought back by officers)
“THE CLERK: Lorenzo, take a seat over here next to your counsel.
“THE COURT: Now, what is your problem? The jury has been sworn according to law to hear your case. You wanted a jury, you wanted a jury trial. The jurors were selected, and you helped select them, selected according to law. This is the jury that is going to hear your case.
“DEFENDANT: This is the jury that is going to hear my case ?
“THE COURT: Yes.
“DEFENDANT: No, sir, they might hear it while I am asleep, but not here, not like I am now.
“THE COURT: They won’t? You just remain standing there.
“DEFENDANT: Beg your pardon?
“THE COURT: I said remain standing until the jury is sworn.
“(Thereupon jury is sworn)
“TFIE CLERK: Be seated. Please be seated, Davis. “MR. SHARRETTS : Sit down.
“DEFENDANT: I don’t know what this here is, but it ain’t mine, they must going to try this man’s case, they ain’t hearing my case.
“THE COURT: Davis, be seated.
“DEFENDANT: Look, I won’t get in any trouble in your courtroom here.
“THE COURT: I don’t want you to get in any trouble but I am telling you to sit down.
“DEFENDANT: How many going to sit me down.
“OFFICER: Sit on the bench and get yourself together.
“THE CLERK: Sit down, Davis. Come on, let’s go.
“(Defendant sits down)”

Davis alleges that after this occurred it was impossible for the jury to give him a fair trial. Pie alleges no authority for the proposition that he can get a mistrial because of his own improper actions and we know of none. In addition, his defense counsel and the trial judge relayed to the jury Davis’ apology for his actions and the trial judge specifically instructed the jury to base their verdict solely on the evidence and that his actions at the time set forth above were not to be considered against him. As we said in Watts v. State, 3 Md. App. 454, 240 A. 2d 317, as well as in several other cases, the matter of prejudice is peculiarly within the discretion of the trial judge because of his superior position to determine such a question. We see no error in the present case.

After the trial Davis made several post trial motions in proper person on grounds that are difficult to follow; but we will discuss them briefly, (a) He alleges that he was illegally arrested and subjected to an illegal search. No evidence was produced at the trial resulting from his arrest or search and, therefore, this ground does not entitle him to relief. Nadolski v. State, 1 Md. App. 304, 229 A. 2d 598. (b) He alleges that the testimony of Mary Watty was not to be believed. We have repeatedly ruled that the credibility of witnesses is a question for the trier of facts. Lucas v. State, 2 Md. App. 590, 235 A. 2d 780, Crumb v. State, 1 Md. App. 98, 227 A. 2d 369. (c) He alleges that the grand jurors were not picked from a cross-section of the City of Baltimore and that there was discrimination in the selection of the jury. There was no evidence whatsoever to support the allegation. Grayson v. State, 1 Md. App. 548, 232 A. 2d 284. (d) He alleges that he was denied a speedy trial because his motion for a new trial was not disposed of for a period of one year after the date of his trial. The right to a speedy trial does not apply to post trial proceedings. Ash v. State, 238 Md. 317, 208 A. 2d 691; Brown v. State, 2 Md. App. 388, 234 A. 2d 788. In addition, the record shows the delay was caused by various requests of Davis’ counsel and Davis’ request that a transcript of the trial be typed so that he could better argue his new trial motion.

Davis next objects because a question by the State’s Attorney to a witness assumed a fact not in evidence. The question was not objected to and is therefore not properly before this Court, Maryland Rule 1085. After the answer to the question was given, counsel did inquire of the State’s Attorney as to the truth of the fact and when the State’s Attorney asserted its truth his objection was withdrawn.

Davis also contends that the evidence was not sufficient to support his convictions. The crimes were described by five eyewitnesses, four of whom positively identified him as one of the criminals. It is difficult to take this contention seriously, since it is utterly without merit.

Judgments affirmed.

      . See Jones v. State, 3 Md. App. 608, 240 A. 2d 347.


author: Ortii, J.,

text:
    OTTWAY LEON CURTIS, SR., v. STATE OF MARYLAND
    [No. 353,
    September Term, 1967.]

      Decided July 2, 1968.

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

      George R. Hughes for appellant.

      IJ. 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 Joseph G. Saurwein, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Ortii, J.,

delivered the opinion of the Court.

The appellant, charged with murder, was found guilty of murder in the first degree by a jury in the Circuit Court for Prince George’s County and sentenced to imprisonment for the remainder of his natural life.

At a bench conference prior to the selection of the jury defense counsel stated an objection to a voir dire question requested by the State “whether or not anybody has conscientious scruples against capital punishment,” for the reason that “it is a denial of equal protection of my client * * * He is entitled to have a jury not have anyone excluded from it from any particular belief whatsoever.” The prosecutor explained that the normal procedure was for the court to ask the question “and follow it up with a subsequent question if in fact they say yes.” The court indicated the inquiry in that event would be “if that would affect their fair evaluation of the case in arriving at a fair and impartial verdict.” If the reply to that inquiry was in the affirmative “then he is not an impartial juror and we excuse him. If he says it wouldn’t affect it we let him serve provided neither one of you strikes him.” Defense counsel then said, “I would like to show my objection.”

In selecting the jury it was first ascertained by the court that no member of the panel had prior knowledge of the case, knew the appellant or members of his family, had a preconceived opinion about the case or knew, “other than seeing them casually,” the prosecutor and defense counsel. The transcript of the proceedings then reads:

“Whereupon, twelve jurors were called into the jury box and the defendant advised of his right of peremptory challenge, after which each individual juror was called and asked to arise and examined individually on their voir dire by asking the following questions:
‘Have you formed or expressed an opinion as to the guilt or innocence of Ottway Eeon Curtis, Sr., prisoner at the bar ?
Do you have any conscientious scruples against capital punishment ?’
No affirmative answers by any of the jurors were received to the above questions, and as each juror was called counsel exercised their right to peremptory challenge until a full panel of twelve was selected * *

The record does not disclose how many peremptory challenges were made by the State and by the defense. The court asked whether the State and defense were satisfied with the jury as selected. The prosecutor replied, “The State is satisfied.” Counsel for the appellant replied, “The defendant is satisfied.” The jury was sworn.

On appeal from the judgment the only contention of the appellant is that he was “denied due process and equal protection of the laws by the Court’s inquiry into the prospective jurors’ beliefs regarding capital punishment.”

At the time the jury was selected there was a statutory proscription against the disqualification of any person for service as a juror of this State by reason of his beliefs against capital punishment. Prior to the effective date of the statute it was well settled in this State that a prospective juror who had conscientious scruples against capital punishment could be challenged for cause in a prosecution for a crime for which capital punishment may be imposed. Culver v. State, 1 Md. App. 406; 416-417; Graef v. State, 1 Md. App. 161, 169. As the purpose of the voir dire examination is to ascertain the existence of cause for disqualification and no other purpose, Baker v. State, 3 Md. App. 251, 254, inquiry to that end in a capital case was then proper. But when this cause for disqualification, established by judicial decision, was removed by legislative enactment, the ground for the inquiry was no longer existent. We think that the question here challenged was not proper as asked after the effective date of the statute. Had the question elicited the fact that a prospective juror entertained a belief against capital punishment he could not have been excluded for that reason. Nor could the information as to such belief properly be sought as the basis for a peremptory challenge. Questions not specifically directed to some reasonable cause for disqualification, and so, merely for peremptory challenge, should not be asked. Handy v. State, 101 Md. 39. “The rule is, then, that questions, not directed to a specific reason for disqualification and exclusion by the court, may be refused in the court’s discretion. The nature and extent of the examination are to be decided by the court in each case, in its discretion, and, on appeal the ruling will not be interfered with unless there has been a clear abuse of that discretion.” Whittemore v. State, 151 Md. 309, 315. See Day v. State, 2 Md. App. 334. The question is, therefore, whether, in the facts and circumstances of the instant case, there was such an abuse of the discretion of the lower court in permitting the question so as to require reversal of the judgment.

We construe Art. 51, § 8A according to the ordinary and natural import of its language, there being no different meaning clearly indicated by the context. It provides, “Hereafter no person shall be disqualified for service as a juror of this State by reason of his beliefs against capital punishment.” We find no imperative reason in the statute for enlarging or restricting its meaning. Height v. State, 225 Md. 251, 257. In the instant case no prospective juror indicated that he had a belief against capital punishment and thus none was excluded for that reason, either for cause or by peremptory challenge. We find no violation of the statute.

The appellant urges, however, that the mere asking of the question, no matter what the result may have in fact been, violated his constitutional rights. He argues that Schowgurow v. State, 240 Md. 121, compels this conclusion. We do not agree. Under the Maryland Constitution the exclusion of non-believers from jury service is not only authorized but demanded. In Schowgurow the Court said, “The resulting danger of abuse, under the decisions of the Supreme Court, at the least, puts-the burden upon the State to show that there was no exclusion or discrimination,” at 131. It found there that the burden was not met. In so finding it noted, at 131, “When the system of jury selection on its face shows discrimination and exclusion, an actual showing of discrimination on the basis of comparative numbers of the excluded and non-excluded classes on the jury lists is unnecessary; it is the danger of abuse resulting from the method of selection which renders it unconstitutional.” It was within this frame of reference that the Court then said, at 131, “Under the decision of the Supreme Court in Torcaso (Torcaso v. Watkins, 367 U. S. 488 [1961]), we are constrained to hold that the provisions of the Maryland Constitution requiring demonstration of belief in God as a qualification for service as a grand or petit juror are in violation of the Fourteenth Amendment, and that any requirement of an oath as to such belief, or inquiry of prospective jurors, oral or written, as to whether they believe in a Supreme Being, is unconstitutional.” But the mere asking of a prospective juror whether he has any conscientious scruples against capital punishment does not establish a system of jury selection which, on its face, shows discrimination and exclusion so as to make the inquiry, standing alone, unconstitutional. And even if it is assumed that there was a resulting danger of abuse thereby, putting the burden upon the State to show that there was no exclusion or discrimination, it is clear from the record, as above stated, that there was no discrimination or exclusion here.

We find support in our holding that the mere asking of a prospective juror if he has any conscientious scruples against capital punishment is not unconstitutional in Crawford v. Bounds, 395 F. 2d 297 (4th Cir.), decided 11 April 1968, in which all seven judges on the en banc panel agreed that the petitioner was entitled to writ of habeas corpus, although six of them wrote opinions. The lead opinion concluded that the petitioner’s “* * * constitutional rights were violated by the manner in which the jury to determine his criminal responsibility was selected, and particularly because the prosecutor was allowed successfully to challenge prospective jurors for cause who expressed sentiments against capital punishment and thus to disqualify a substantial segment of the panel, without the additional determination being made that their objections to capital punishment would preclude them> from rendering a fair verdict on the issue of guilt.” (emphasis added). And it was later said in the opinion that “* * * belief against capital punishment on the part of jurors who are vested with a dichotomy of functions — the determination of the issue of guilt, and, if guilt is found, the degree of punishment to be imposed —cannot be allowed to disqualify a substantial part of the venire when it is not established that the views of the persons so disqualified will preclude them from making a fair determination on the issue of guilt, aside from the issue of punishment. Such disqualification prevents the jury in its function of determining the issue of guilt from being fairly representative of the community, and thus violates equal protection of the laws.” We think it clear that the holding of the court was predicated on the fact that the method of jury selection resulted in a systematic exclusion of jurors and not that the mere inquiry as to belief against capital punishment was a constitutional violation. It appears that had the inquiry been followed with further inquiry of a juror expressing such belief as to whether it would preclude him from making a fair determination on the issue of guilt, and had he not been excluded for cause on an expression that it would not, there would have been no constitutional denial. In the instant case the posing of the question did not result in a systematic exclusion of jurors. And from the remarks of the lower court, a juror who had conscientious scruples against capital punishment would then have been asked if such scruples would preclude him from making a fair determination in arriving at a fair and impartial verdict and if not, he would not have been struck for cause.

We find further support in Bumper v. North Carolina, 390 U. S. 986, decided 3 June 1968. The petitioner argued that his constitutional right to an impartial jury was violated in that capital case when the prosecution was permitted to challenge for cause all prospective jurors who stated that they were opposed to capital punishment or had conscientious scruples against imposing the death penalty. He asserted that a jury qualified under such standards must necessarily be biased with respect to a defendant’s guilt and that he was denied his right under the Sixth and Fourteenth Amendments to trial by an impartial jury. The Supreme Court refused to accept the contention, stating that he adduced no evidence to support the claim that a jury so selected was necessarily “prosecution prone” and that the materials referred to in his brief were no more substantial than those brought to the Court’s attention in Witherspoon v. Illinois, 390 U. S. 986, decided the same day. In the instant case the appellant adduced no evidence to support a claim that the jury which convicted him was “prosecution prone,” or as he now urges, that he was faced by a “hanging jury” or that they were all “death qualified,” or that they were other than impartial. The materials on the subject mentioned in his brief — “public opinion polls conducted by George Gallup and Elmo Roper as reported in the Washington Post” and an article by “Professor Ober * * * in 42 Texas Law Review 545” are less substantial than those brought to the Court’s attention in Witherspoon and referred to in the brief in Bumper.

In view of § 8A of Art. 51 we think it the better practice for the court not to put or permit a question to prospective jurors as to their beliefs against capital punishment. But in the circumstances of the instant case we do not think that the mere asking of the question violated the constitutional rights of the appellant. We feel that the court did not abuse its discretion in the asking of the question so as to require reversal. We do not presume prejudice to the appellant therefrom and find none from the record.

Judgment affirmed.

      . Ch. 300, Acts of 1967, approved 31 April 1967, codified as § 8A, Art. 51, Md. Code (1968 Repl. Vol.). By § 3 of the Act it became effective 1 June 1967. The jury here was selected and trial commenced 13 September 1967. At the trial no reference was made to the statute by the court, State or defense.

        . The State said in its brief, “The records of the Department of Legislative Reference do not contain any comments or testimony to assist in determining the legislative intent of this statute, the sponsor of this legislation does not have any official writing which expresses the legislative intent, and legislative debate was negligible.”

      . In Witherspoon it was held that a death sentence cannot constitutionally be executed if imposed by a jury from which have been removed from cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty. The issue there was a narrow one, not involving the right of the prosecution to challenge for cause those prospective jurors who state their reservations against capital punishment would prevent them from making an impartial decision as to the defendant’s guilt. Nor did it involve the State’s assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them. The Court said that Witherspoon did not govern Bumper because in Bumper the jury recommended a sentence of life imprisonment.


text:
    MELVIN RONALD JETT v. DIRECTOR, PATUXENT INSTITUTION
    [No. 87,
    September Term, 1967.]

      Decided July 3, 1968.

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

This is an application for leave to appeal from a determination by Judge Shirley B. Jones, sitting in the Criminal Court of Baltimore on applicant’s petition for relief under the Uniform Post Conviction Procedure Act. On September 24, 1963 the applicant was found guilty of storehouse breaking and on November 8, 1963 he was found guilty of larceny, both in the Criminal Court of Baltimore. He received sentences totaling two years, the sentences were suspended and he was placed on probation for two years. On May 25, 1964, applicant was convicted in the Municipal Court of Baltimore City of the offenses of carrying a deadly weapon and attempted larceny. He received consecutive one year sentences on these convictions. His probation was revoked and the suspended sentences were reinstated.

In his petition the applicant attacked only the convictions in the Municipal Court of Baltimore City asserting that at the time of his trial in the Municipal Court of Baltimore City, he was not represented by counsel and although he was indigent, counsel was not appointed for him. Judge Jones found that the State had failed to prove that the applicant had knowingly and intelligently waived his right to counsel. She granted the applicant a new trial on the offenses of which he was convicted in the Municipal Court of Baltimore City. Judge Jones also found that the applicant was legally detained under the sentences which were reinstated upon revocation of the probation. The application for leave to appeal was apparently directed to the finding that the appellant was legally detained under the reinstated sentences.

It appears that the applicant’s sentences expired on August 18, 1967 and he was released from the Maryland House of Correction on that date. Even though he was turned over to the Sheriff of Anne Arundel County on a detainer to answer for another charge, he is no longer “incarcerated under sentence of death or imprisonment or on parole or probation * * *” on the convictions attacked. Md. Code, (1967 Repl. Vol.) Art. 27, § 645A. Accordingly the application for leave to appeal, in any •event, has been rendered moot and must, therefore, be denied. Tucker v. Warden, 240 Md. 738; Good v. State, 240 Md. 1.

Application denied.


text:
    FRANKLIN HESS v. STATE OF MARYLAND
    [No. 132,
    September Term, 1967.]

      Decided July 3, 1968.

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

This is an application for leave to appeal from a denial of relief requested in a first petition under the Uniform Post Conviction Procedure Act by Judge Irvine H. Rutledge, sitting in the Circuit Court for Washington County.

On 30 March 1967 applicant was found guilty of assault by a jury in the Circuit Court for Washington County, Chief Judge D. Kenneth McLaughlin presiding. He was sentenced to three years in the Maryland House of Correction. A motion for a new trial was denied on 5 April 1967. An appeal from the judgment was noted but dismissed by the applicant on 3 May 1967. The petition under the U.P.C.P.A., filed 3 July 1967, presented fourteen allegations of error. It appears that three additional allegations were presented at the hearing. These seventeen allegations, in substance, pertained to the following matters:

(1) The legality of the refusal of the magistrate to issue a warrant at the request of the applicant for the complaining witness’s arrest and the subsequent indictment of the applicant by the Grand Jury.

(2) The right to a preliminary hearing.

(3) The failure to give the Miranda warnings.

(4) The dismissal, in error, by the prosecution of a witness-summoned by the defense.

(5) The complainant, who wanted to withdraw the charges against the petitioner, was advised not to do so by the State’s Attorney, who told him that it might jeopardize his parole status.

(6) The jury did not consider testimony of defense witnesses.

(7) The complainant’s testimony should have been stricken from the record.

(8) The complainant’s testimony should have been impeached and the credibility of this testimony should have been brought before the jury by reason of his-previous confinement in a mental hospital.

(9) There was contradictory testimony of State’s witnesses.

(10) The evidence was insufficient to convict.

(11) The failure of the judge to instruct the jury as to the seriousness of the charge.

(12) A finding of guilt was based on reputation rather than the evidence.

(13) The judge made prejudicial remarks.

(14) His trial counsel was incompetent.

(15) His trial counsel had a conflict of interest.

(16) The jury saw pictures not introduced into evidence.

(17) The petitioner was denied due process and equal protection of the laws.

The application does not contain a statement of the reasons-why the order should be reversed or modified as required by Md. Rule BK 46b, and may be denied on this ground. Goetzke v. Warden, 1 Md. App. 3.

It appears from the memorandum of Judge Rutledge accompanying the order that the applicant, at the hearing, pursued seven of these allegations — numbers three, four, ten, thirteen,. fourteen, fifteen and sixteen. It may be that the applicant thus abandoned the remaining allegations, and, if so, it would have been better for the hearing judge affirmatively so to state in his memorandum. But in any event we find no merit in any of the allegations and dispose of them without remand to avoid useless further consideration thereof. See Duff v. Warden, 234 Md. 646.

(1) and (2)

The applicant alleged in his petition that he first “confronted” the magistrate to obtain a warrant for the arrest of the prosecuting witness. The magistrate refused to issue the warrant but did issue a warrant at the request of the prosecuting witness for the arrest of the applican. The matter was apparently taken before the grand jury without a preliminary hearing and the applicant was indicted. The magistrate’s refusal to issue a warrant for the arrest of the prosecuting witness is no ground for post conviction relief, and there is no requirement that a preliminary hearing be held. Ross v. Warden, 1 Md. App. 46.

(3)

Judge Rutledge found that no statement or confession given by the applicant was introduced in evidence at the trial. Therefore Miranda v. Arizona, 384 U.S. 436, is not applicable. Crosby v. State, 2 Md. App. 578.

(4)

The State did not contest that a witness summoned by the applicant was erroneously dismissed by the State’s Attorney. The hearing court found, however, that when the applicant learned of this he decided, after consultation with his counsel, not to ask for a continuance but to proceed without the witness. The applicant cannot now complain. Further, the hearing court found that the testimony of the witness would have been merely cumulative.

(5)

This allegation affords no ground for relief.

“In general, the law seeks to remedy private and public wrongs. A private wrong, otherwise termed a ‘tort’ or ‘civil injury’ is an infringement or privation of the civil rights which belong to individuals, considered merely as individuals. A public wrong or crime is a breach and violation of the public rights and duties to the whole community in its social aggregate capacity. This latter class of wrongs affects the whole community, and not merely individual members of the community, hence, the public good requires the State to interfere and punish the wrongdoer. The punishment imposed for the protection of the public, and not solely because of injury to an individual. The latter must seek redress in a civil action.” Clark and Marshall, Crimes, 6th Ed., §2.01, p. 88-89.

Unless there is some statutory provision, nothing that is done or agreed upon between the parties after the forbidden act can eradicate its criminal character or prevent the State from prosecuting and punishing the wrongdoer. Clark and Marshall, supra, p. 92. Thus the contention, even if assumed true, would not have prevented the State from prosecuting on the indictment and summoning the victim as a prosecution witness. There was nothing that the complainant could have done about having the charges dropped at that stage, because the proceedings were beyond his power to dismiss.

(6), (9), (10) and (12)

These allegations go to the weight and sufficiency of the evidence and cannot be raised in post conviction procedures. Montgomery v. Warden, 1 Md. App. 30.

(7), (8) and (14)

These bald allegations appear to go to the question of the competency of counsel. Judge Rutledge stated, “His attorney succeeded in having dismissed the charge of assault with intent to maim; he was found guilty only of simple assault. His attorney made all possible motions, cross-examined extensively, and to the knowledge of the Court, did not leave undone what he ought to have done. In fact, after his conviction, the petitioner wrote to the Clerk of the Court in dismissing an appeal, ‘Mr. K. (his attorney) has conferred with me and advised me of my rights. I am quite satisfied with him and he has capably handled my trial in this matter and this position. I have no complaints with him whatsoever.’ ” We find these allegations to be without merit. See Johns v. Warden, 240 Md. 209.

(11)

There is no contention that the instruction set forth, even if it would have been proper, was requested. See Md. Rule, 756. The regularity of the proceedings at trial may be reviewed on direct appeal if properly preserved, but not in a collateral proceeding. Matthews v. Warden, 223 Md. 649; Ross v. Warden, supra.

(13)

The applicant alleged that the trial judge called the defendants “bullies” and “hoodlums”. Judge Rutledge found that the allegation was not supported by the evidence. The applicant’s counsel testified that he recalled the judge making such remarks but at the time of sentencing, not during the course of the trial. The allegation is without merit.

(15)

Judge Rutledge held that this allegation was without merit. He found that counsel at the trial represented both the applicant and his 19 year old brother, a co-defendant, but that counsel maintained that neither defendant was guilty and that only after the verdict urged more leniency “was indicated for the younger brother, both because of his age and also because the petitioner had a sizable criminal record which his younger brother did not have.” We agree with the hearing judge that no conflict of interest was shown nor do we find any prejudice to the applicant. The mere representation of two defendants by one counsel does not, of itself, establish a conflict of interest. McCoy v. Warden, 234 Md. 616.

(16)

From evidence produced at the hearing it appeared that one or two pictures were offered in evidence. The applicant thought that other pictures were seen by the jury but did not know which ones were in evidence and which were not. His attorney did not remember any pictures not in evidence being seen by the jury. The allegation is not sufficient to afford relief.

(17)

That the applicant was denied due process and equal protection of the laws is a bald allegation of denial of constitutional rights without specification. It therefore affords no grounds for relief. Ross v. Warden, supra.

Application denied.

      . A summons had been issued for the appearance of the witness at the post conviction hearing. The summons was returned non-est and it was reported that he had “suddenly left the State before the summons was served.” Counsel for the applicant at the hearing had talked to the witness, however, and obtained the substance of his ■testimony.