author: Morton, J.,

text:
    ALPHONSO CLARKE v. STATE OF MARYLAND
    [No. 67,
    September Term, 1967.]

      Decided April 1, 1968.

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

      Fred Warren Bennett for appellant.

      Prank A. DeCosta, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Linthicum, Jr., State’s Attorney for Montgomery County, and Andrew L. Sonner, Deputy State’s Attorney for Montgomery County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The Appellant, Alphonso Clarke, was convicted by a jury in the Circuit Court for Montgomery County of grand larceny and sentenced to fifteen years in the Maryland Penitentiary.

It appears that a service station owner returned to his station about 11:00 P.M. on the evening of November 14, 1966, after having closed it an hour before, and found two men in front of the tire racks with the doors open. Both men fled and the owner gave chase. He overtook one of them but when the man threatened to shoot him he let him go and returned to the station to obtain a pistol. As he did so, he observed a red truck loaded with new tires taken from the racks leaving the station. He fired several shots in the direction of the truck which kept going. He jumped in his car and attempted, unsuccessfully, to follow the truck. About two blocks from the station, as he was still trying to locate the truck, he observed the Appellant walking across a parking lot and recognized him as the second individual he had seen in front of the tire racks. He forced the Appellant, at gun point, into the car, drove back to the service station where the Appellant was arrested by the police officers who had been called by the service station owner’s wife.

During the cross examination of Officer Wisda, by the Appellant’s trial attorney (not his appellate counsel) it was developed that at the police station, Detective Daniels advised the Appellant of “his right to have a lawyer; his right to remain silent; his right not to make any statements; if he couldn’t afford a lawyer the State would provide one if he was unable to pay for one * * *” and that he had a right to have an attorney before any interrogation. The Appellant said he wanted an attorney and “he wasn’t going to say anything.” At the Appellant’s request, the police attempted to contact three attorneys without success. No further attempt was made to interrogate the Appellant about the crime and Detective Daniels left the room to attend to other work, while Officer Wisda proceeded to “book” the Appellant. In filling out the forms in connection with the “booking procedure” Officer Wisda asked the Appellant his name, address and place of employment. The Appellant stated that he worked at the Topaz House. As a result of this information, the Topaz House was checked and a red truck loaded with the stolen tires was found in the basement and an inspection indicated that the front fender and right front door had “a definite place where a bullet had hit.”

In this appeal, the Appellant contends that the trial judge committed prejudicial error in failing to exclude the testimony as to how and where the police located the truckload of stolen tires, since, it is argued, this testimony was the product of interrogating the Appellant in violation of the principles enunciated in Miranda v. Arizona, 384 U. S. 436. The Appellant concedes that the Miranda warnings were given but argues that once they were given and the Appellant indicated that he wanted to exercise the rights afforded by the warnings, all questioning thereafter became illegal, per se, and any “fruits” produced by such questioning were “poisonous.”

We need not decide the applicability of the “fruit of the poisonous tree” doctrine to state criminal trials since Appellant’s argument here completely overlooks the fact that Miranda dealt with in-custody interrogations which had as their purpose the extraction of confessions, admissions or inculpatory statements from the accused. The Court referred to “incommunicado interrogation of individuals in a police-dominated atmosphere” and stressed “that the modern practice of in-custody interrogations is psychologically rather than physically oriented.” The Court alluded to its prior holding in Escobedo v. Illinois, 378 U. S. 478 and stated:

“The entire thrust of police interrogation there, as in all the cases today, was to put the defendant in such an emotional state as to impair his capacity for rational judgment. The abdication of the constitutional privilege—the choice on his part to speak to the police— was not made knowingly or competently because of the failure to apprise him of his rights; the compelling atmosphere of the in-custody interrogation, and not an independent decision on his part, caused the defendant to speak.”

Thus, it is apparent that the type of “interrogation” with which the Court was concerned in Miranda was an interrogation that had as its purpose the determination of the accused’s connection with the commission of the crime and the revelation of crucial facts which would reflect upon his guilt or innocence of the crime for which he was being held. In decreeing that the warnings must be given prior to such interrogation, the ultimate purpose was, clearly, to prevent interrogations of the type that result in the will of the accused being overborne. Thus, the answers of the accused to questions propounded during such interrogation would be anything but freely and voluntarily given.

In the case at bar, the Miranda warnings had been given to the Appellant. When he indicated that “he wasn’t going to say anything,” the interrogation proposed by Detective Daniels was abandoned and he had no more contact with the Appellant. The three questions concerning the Appellant’s name, address and place of employment which were asked by another officer, whose responsibility it was to carry out the booking procedure, did not, in our opinion, constitute an interrogation of the type contemplated by the Court in Miranda. The questions were routine; were ordinarily addressed to every individual who was subject to the booking procedure; and were not intended to elicit answers which would incriminate the Appellant.

The factual situation here is not unlike that which confronted the Fifth Circuit Court of Appeals in Farley v. United States, 381 F. 2d 357 (Cert. Den. 389 U. S. 942). In that case, the accused had been arrested for attempted burglary of a post office. After Farley had declined to tell the postal inspector anything concerning the crime, but referred all questions to his attorney, the inspector “made one further inquiry, ‘will you tell me where you live?’, to which Farley responded that he lived at 1040 Opalocka Boulevard.” The purpose of eliciting this testimony from the Appellant was to negative any possible explanation for Farley’s presence at the scene of the crime by proving that he lived a considerable distance away. The Court, in holding such evidence admissible, stated:

“The place where Farley lived was, of course, not a matter within Farley’s exclusive knowledge, and he no doubt recognized that a little investigation by the officers would locate that place. It was a circumstance having at most a remote bearing upon his guilt or innocence. There was no evidence of any oppressive or overbearing circumstance. Indeed, the officer’s inquiry took the form of a mere request. True, Miranda teaches that Tf the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.’ 384 U. S. at 473, 474, 86 S. Ct. at 1627. Under the circumstances of this case, that direction was faithfully executed with the possible exception of the further inquiry, ‘Will you tell me where you live?’ Under all of the circumstances of this case, it does not seem reasonable to apply Miranda so strictly as to exclude the response to that inquiry.”

We decided in Gaudio v. State, 1 Md. App. 455, that under the circumstances there involved, the questions addressed to the accused “did not amount to a ‘custodial interrogation’ as contemplated by Miranda.” Today, we hold that although the Appellant was in police custody, the “interrogation,” under the circumstances here involved, was not of the type proscribed by Miranda.

, Appellant, also complains that the State, in answer to his Motion For Discovery and Inspection, asserted that the Appellant made no oral statement which the State intended to produce as evidence to prove its case; that the Appellant’s furnishing the police with information regarding his name, address and place of employment, constituted an oral statement; and that the State’s failure to advise Appellant’s trial counsel of such statement constituted a deception which should have compelled the trial court to declare a mistrial.

The short answer to this contention is that no motion for a mistrial was filed by the Appellant and, accordingly, the question is not properly before us. Md. Rule 1085. Moreover, it is difficult to see how trial counsel could have been deceived or surprised since the Appellant, of necessity, knew he had advised'the police of his name, address and place of employment. In any event, we -cannot say that the failure of the Court to order' a mistrial on its own motion constituted such an abuse of its discretion as to warrant a reversal of the judgment of conviction. See Glaros v. State, 223 Md. 272; Kardy v. Shook, 237 Md. 524; Barton v. State, 2 Md. App; 52, 57.

Finally, it is contended that the trial judge erred in ref using the Appellant’s request for an instruction to the jury that once sufficient evidence of his intoxication was introduced, the State must prove, beyond a reasonable doubt, that the Appellant was not so intoxicated as to be incapable of forming the specific intent to commit larceny. He argues that intoxication, like insanity, is an affirmative defense and he refers to the rule that once sufficient evidence of insanity has been introduced on behalf of the accused to overcome the presumption of his sanity, the State must prove beyond a reasonable doubt that the accused is sane. He contends that the rule with respect to intoxication should be the same.

This contention would seem to be foreclosed as far as this Court is concerned by our holding in Michael v. State, 1 Md. App. 243. Intoxication as a defense to the commission of a crime was fully discussed therein and what we said there (p. 247-248) bears repeating here:

“In Maryland, as elsewhere, voluntary drunkenness is generally not a defense to crime. [Citations omitted]. It may, however, be considered by the triers of fact as bearing upon the state of mind of the accused. Stansbury v. State, 218 Md. 255 (1958). Where a particular motive, intent or purpose is an essential element of a crime, drunkenness may be considered in determining whether or not the accused lacked the mental capacity to form the requisite motive, intent, or purpose, and if a sufficient mental incapacity is found to exist drunkenness may constitute a defense to the particular offense charged.”
“The accused must do more than simply raise the issue of drunkenness to establish a defense. State v. French, supra. But cf. Edwards v. United States, 172 F. 2d 884 (D. C. Cir. 1949); Womack v. United States, 336 F. 2d 959 (D. C. Cir. 1964). He must persuade the triers of fact that, under the circumstances, he was so intoxicated as to be incapable of entertaining the specific mental intent or of possessing the mental state which is an essential element of the crime for which he is being prosecuted. To esiablish a valid defense, the appellant must show that he was so intoxicated that he was robbed of his mental faculties, and he will be considered criminally responsible as long as he retains control of his mental faculties sufficiently to appreciate what he is doing. See Beall v. State, supra, at p. 386; Stansbury v. State, supra; Chisley v. State, supra; 1 Wharton, Criminal Law and Procedure, Section 48 (12th ed., 1957); 2 Underhill, Criminal Evidence, Section 471 (5th ed.); Clark and Marshall, Crimes, Section 95 (a) and (c) (5th ed., 1952); 22 C.J.S., Criminal Law, Section 68 (b), p. 220.”

We have read and considered the instructions of the trial judge with respect to intoxication and we are of the opinion that they adequately stated the law as outlined above.

Judgment affirmed.


source: Caselaw Access Project

author: Anderson, J.,

license: Public Domain

text:
    JOHN ALLEN WATTS v. STATE OF MARYLAND
    [No. 78,
    September Term, 1967.]

      Decided April 1, 1968.

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

      Jack B. Richards for appellant.

      Jon F. Oster, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Charles B. Moylan, Jr., State’s Attorney for Baltimore City, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

The appellant, John Allen Watts, was tried by a jury, Judge Charles D. Harris, presiding, in the Criminal Court of Baltimore, under six indictments containing multiple counts, charging him with robbery with a deadly weapon, carrying a deadly weapon openly with intent to injure, and assault with intent to murder. He was convicted under the first count of Indictment No. 1 (armed robbery) ; under the third, fourth, fifth, sixth and seventh counts of Indictment No. 2 (carrying a deadly weapon openly with intent to injure) ; and under the first count of Indictments Nos. 3, 4, 5 and 6 (assault with intent to murder). In Indictment No. 1 he was sentenced to twenty (20) years in the Maryland Penitentiary; in Indictment No. 2 sentence was suspended generally; and in Indictments Nos. 3, 4, 5 and 6 he was sentenced to ten years in the Maryland Penitentiary under each indictment, sentences to run concurrently with the sentence imposed in Indictment No. 1. From his convictions he appeals to this Court.

On December 21, 1966, at approximately 2:00 p.m., the State Finance Corporation located on the second floor of 5414 Harford Road in Baltimore was robbed of $615.00. The robber was described as a tall thin man, approximately six feet in height, weighing around 165-170 pounds, wearing a black felt hat, sunglasses to which were taped a blue handkerchief, a three-quarter length black topcoat with a fur collar, black gloves, and carrying a sawed-off shotgun to which was taped a strap that went around his right shoulder. There were four employees in the office: Lewis McKnight, the Branch Manager, Francis P. Saraullo, Assistant Manager, John Marks, a Collector, and Florence Crawford, a Cashier. The robbery was carried out at gun point and McKnight was forced to open the cash drawer and the safe from which the money was removed. After the robbery, the employees were herded into a small utility room and told to lie down. The door was closed and the robber placed three television sets against it. After Saraullo, who remained standing and could observe the robber through a metal grate in the door, saw the robber leave, he pushed the door open and ran down the steps and out on the street where he saw the bandit at the cornor of Gibbons Avenue and Harford Road. When the robber, who had removed his sunglasses, saw him he ran to his automobile, a maroon colored Thunderbird with black top, and jumped in. The motor started but cut off briefly and before he could get away Saraullo was able to take down the license number. The automobile then proceeded west on Gibbons Avenue.

Officer DiPino, the arresting officer, testified that he was on routine patrol when he learned of the robbery of the State Finance Corporation. He went directly to the corner of Harford Road and Gibbons Avenue, where he was accosted by the witness Saraullo, who got into the police car and gave the officer the license number of the bandit’s car, which was still in view proceeding west on Gibbons Avenue. Officer DiPino pursued the robber’s car west on Gibbons Avenue and kept it in view until it stopped at a traffic light at McClean Boulevard and Perring Parkway. The officer pulled in behind the robber’s car, saw that the license number corresponded with that furnished him by Saraullo, and jumped from the police car, with pistol drawn, and ordered the bandit out of the car. He placed him under arrest, and at that time could observe through the window the barrel of a shotgun partially covered by a black coat on the front seat. He radioed for assistance and upon the arrival of assistance, searched appellant’s car and removed therefrom a sawed-off shotgun with strap taped thereto, a three-quarter length black topcoat with fur collar, which were on the front seat, and a black felt hat and light jacket, which were on the back seat. In the left coat pocket of the black topcoat was found $615.00 and in the right coat pocket the sunglasses with the handkerchief taped to the bottom and the black gloves. Saraullo also jumped from the police car at the time of the arrest and saw the shotgun and coat through the car window and was present when the articles were removed. He identified appellant to Officer DiPino as the robber.

Appellant raises four contentions on appeal:

1. That the court erred by allowing the State’s witnesses to remain in the courtroom after a motion to exclude all witnesses.
2. That the court erred by failing to grant the defendant’s motion for a mistrial.
3. That the court erred by (a) its failure to hold an exclusionary hearing out of the presence of the jury on the limited issue of probable cause; and (b) by permitting illegally seized evidence to be submitted to the jury for its consideration.
4. That the court erred by failing to find that the offense of carrying a deadly weapon openly with intent to harm as charged in Indictment No. 2 merged with the offense of assault with intent to murder as charged in Indictments Nos. 3, 4, 5 and 6.

I

Appellant’s first contention that the trial court’s failure to exclude the witnesses immediately upon counsel’s motion resulted in prejudicial error is not supported by the record. The record as set forth below reveals that the witnesses were excluded after counsel’s motion and immediately after the jury was sworn and is as follows:

“(The Clerk) John Allen Watts, would you stand up?
(Mr. White) At this time, before this occurs, I am going to move that all witnesses be excluded.
(The Court) Prior to the swearing of the Jury?
(Mr. White) It doesn’t make any difference.
(The Court) If it doesn’t make any difference, swear the jury and then all witnesses will be excluded.
(The Clerk) John Allen Watts, remain standing, please. Members of the Jury, stand and raise your right hand. (Thereupon all members of the Jury panel were duly sworn.)
(The Clerk) All witnesses in the cases of the State of Maryland versus John Allen Watts, would you retire to the hallway until you are called; that is, witnesses for the State or the Defense ?”

The record indicates that no motion was made to exclude witnesses before the clerk asked appellant to stand and further shows that appellant’s counsel not only failed to object to the jury being sworn prior to the witnesses being excluded, but, in fact, concurred in this procedure.

The purpose for excluding witnesses is to prevent prejudice. Swift v. State, 224 Md. 300, 306, 167 A. 2d 762 (1961); Bulluck v. State, 219 Md. 67, 70, 71, 148 A. 2d 433 (1959); Breeding v. State, 220 Md. 193, 151 A. 2d 743 (1959). We find no prejudicial error in swearing the jury prior to excluding the witnesses since appellant failed to object, and, inasmuch as appellant concurred in this procedure, we find compliance with Maryland Rule 753.

II

Appellant next contends that he was not given a fair and impartial trial because the court failed to grant his motion for a mistrial. His motion arose out of a question asked by appellant’s attorney to Officer DiPino, the arresting officer. The witness was asked, “Did you conduct a lineup that day?” The witness answered, “No, sir, not that day. A lineup was to be conducted but you refused to let him stand in the lineup and we had the confrontation—.” Counsel then objected to the answer and moved for a mistrial. The trial court denied the motion, but struck out that portion of the answer relating to advice given the defendant by his counsel.

The granting of a motion for a mistrial is within the discretion of the trial-judge. Lusby v. State, 217 Md. 191, 195, 141 A. 2d 893 (1958); and we find nothing in the record to indicate any abuse of discretion on the part of the lower court. No lineup was ever conducted, and this must have been known to appellant’s attorney when he asked the question. The question of prejudice is a matter which the trial court is in the best position to judge and its decision should not be reversed unless it is clear there was prejudice. Lusby v. State, supra, 195. We find no prejudice.

Moreover, appellant was positively identified at the trial by three of the four employees of the State Finance Corporation present at the time of the robbery.

Ill

Appellant’s third contention is twofold: (a) That the court failed to hold an exclusionary hearing out of the presence of the jury on the limited issue of probable cause; and (b) that the court committed error in allowing illegally seized evidence to be submitted to the jury for its consideration.

We find no merit to either contention. There was no reason for the court to hold an exclusionary hearing out of the presence of the jury on the limited issue of probable cause since appellant failed to challenge the legality of the arrest nor did he raise the issue of lack of probable cause or reasonable grounds for the arrest. Instead, he moved to exclude the evidence obtained from appellant’s automobile on the grounds that appellant was arrested outside his automobile, and therefore the police officer was only authorized to search the appellant’s person and not his automobile without a search warrant. The lower court properly denied the motion to exclude the evidence previously admitted. If the arrest was legal, the search, which was contemporaneous with the arrest, was legal and the articles found in appellant’s automobile were properly admitted in evidence. Dixon v. State, 1 Md. App. 623, 626, 232 A. 2d 538, 540 (1967); Barton v. State, 2 Md. App. 52, 59, 233 A. 2d 330, 335 (1967); Lamot v. State, 2 Md. App. 378, 384, 234 A. 2d 615 (1967).

Moreover, the lower court found there was “overwhelming evidence that the officer had probable cause and reasonable grounds to believe that a felony had been committed and that the defendant had participated in or committed that felony.” We agree with the finding of the lower court. Knowing that a felony had been committed, the police officer had probable cause under the circumstances of this case to believe that the appellant was the criminal. Cottrell v. State, 1 Md. App. 520, 522, 231 A. 2d 919 (1967) and cases cited.

IV

Appellant’s fourth and final contention raises an interesting question. Does the offense of carrying a dangerous and deadly weapon openly with intent to injure a certain named person merge into the greater offense of assault with intent to murder that particular person ? Here, appellant was convicted under the third, fifth, sixth and seventh counts of Indictment No. 2 with the offense of carrying a dangerous and deadly weapon openly with intent to injure Lewis M'cKnight (third count), Paul Saraullo (fifth count), John Marks (sixth count), and Florence Crawford (seventh count). Also, appellant was found guilty under Indictment Nos. 3, 4, 5 and 6 with assault with intent to murder Lewis McKnight (No. 6), Paul Saraullo (No. 3), John Marks (No. 4) and Florence Crawford (No. 5).

Since the offense of carrying a dangerous and deadly weapon openly with intent to injure each of the above-named persons (a misdemeanor) was a necessary ingredient of the greater offense of assault with intent to murder each of the above-named parties (a felony), we find that the lesser offenses merged into the greater offenses under the particular facts of these cases. The elements of the two crimes are the same. The true test of whether one criminal offense has merged into another is not whether the two criminal acts are successive steps of the same transaction, but whether one crime necessarily involves the other. Tender v. State, 2 Md. App. 692, 237 A. 2d 65; Chittum v. State, 1 Md. App. 205, 228 A. 2d 628; Veney v. State, 227 Md. 608, 613-14, 177 A. 2d 883 (1962); Williams v. State, 205 Md. 470, 109 A. 2d 89 (1954).

However, we further find that the fourth count of Indictment No. 2 does not merge into Indictments Nos. 3, 4, 5, and 6 where appellant was charged with assault with intent to murder. In count four, appellant was charged with the offense of carrying a dangerous and deadly weapon openly with intent to injure a person to the jurors unknown. Here, the jury found he was carrying the shotgun openly with intent to injure any person who might cross his path or interfere with the crime he planned to- commit. Under this count, the elements of carrying a deadly weapon openly with intent to injure and assault with intent to murder are not the same; one could be complete or occur without the other and therefore there was no merger. Williams v. State, supra; Veney v. State, supra.

As to Indictments 1, 3, 4, 5, and 6: Judgments affirmed.

As to Indictment 2: Judgment affirmed as to Count No. 4. Judgment vacated as to Counts Nos. 3, 5, 6 and 7 as having merged in accordance with this opinion.

      . The same weapon, a sawed-off shootgun, was used in each offense. The victims are the same persons described in each offense, and there was identity of time, place and circumstances of each offense.


text:
    RICHARD BRISCOE v. STATE OF MARYLAND
    [No. 79,
    September Term, 1967.]

      Decided April 1, 1968.

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

      Ronald M. Sharrow for appellant.

      Alfred J. O’FerraiU, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Robert Fertitta, Assistant State’s Attorney for Baltimore. City, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

Appellant, Richard Briscoe, was convicted by a jury, Judge J. Gilbert Prendergast presiding, in the Criminal Court of Baltimore, of the common law offense of riot and was sentenced to the Maryland Penitentiary for a term of one year, to run consecutively with the sentence he is now serving in that institution.

On appeal he raises three contentions:

1. That Indictment No. 3520 under which he was indicted was faulty.
2. That the evidence presented by the State was insufficient to support hjs conviction.
3. That the consolidation of his case with that of one Cletus Bane, Indictment No. 3749, was prejudicial to appellant’s right to a fair and impartial trial.

On July 8, 1966, a riot took place in the Maryland Penitentiary. It began about 12:00 noon in the prison yard and approximately two hundred inmates were directly involved. Order was not restored until about 4:30 p.m. on that day. During the course of the riot considerable damage was done to the institution. The commissary was set afire and looted, fires were started in the industrial shop building, the Print and Tag shop and in the institution’s laundry. While the fires were being fought by the Baltimore City Fire Department, the inmates involved were seen running and milling about the prison yards leading off of the dining hall and commissary, hurling missiles and smashing windows. The warden put the Penitentiary’s riot plan in effect and the prison guards were reinforced by the Baltimore City Police Department and their K-9 Squad. During the riot, the inmates attempted to storm the institution’s power house but were repulsed by the guards and City Police. The entire contents of the commissary were taken by the inmates involved during the looting of that building. The damage to the buildings and losses from the commissary were estimated at approximately $750,000.

The appellant was identified by three of the Correctional Officers of the institution as a participant in the riot. Two of the witnesses testified that he was observed to be actively engaged in looting, removing cartons of cigarettes and other packages from boxes and handing them out to other inmates and appropriating to himself at least one carton of cigarettes. The other witness testified that at the time the prisoners were attempting to storm the power house, he saw appellant carrying a piece of lumber, 2 by 3 feet long, waving it around about his head and shouting at the police.

Appellant testified in his own behalf and denied any participation in the riot, although he admitted being in the yard. No other witnesses testified for the defense. A motion for judgment of acquittal was made at the end of the State’s case, which was denied by the court. His motion for judgment of acquittal was renewed at the end of the entire case and was again denied.

I

The indictment under which appellant was indicted is drawn in one count and charges “that Richard Briscoe late of said City, on the eighth day of July, in the year of our Lord nineteen hundred and sixty-six, at the City aforesaid together with divers persons to the Jurors aforesaid unknown, unlawfully, riotously and tumultuously did assemble and gather together to disturb the peace of the said State; and then and there being so gathered together did make a great noise, riot, tumult and disturbance, and then and there unlawfully, riotously and tumultuously remained and continued, together for a long space of time, to the great terror and disturbance of the persons thereabouts inhabiting, residing and being; and to the terror of the people of the said State,” etc.

Appellant complains that the indictment is invalid because (1) there is no allegation of intent therein, and (2) that the names of third persons who are necessary parties to the consummation of the offense charged and who constitute a necessary part of the description of the offense are not named.

Appellant’s attack on the validity of the indictment has been fully answered by the Maryland Court of Appeals in Cohen v. State, 173 Md. 216, 195 A. 532, rearg. den. 173 Md. 216, 196 A. 819, cert. den. 303 U. S. 660, 58 S. Ct. 764, 82 L. Ed. 1119.

The language of the fifth count of the Cohen case is practically identical with the wording of the indictment under which appellant was indicted. In the Cohen case the defendant argued that the fifth and sixth counts did not come within the definition of “riot” and that unless there was an indictment of three named defendants, the charge cannot be sustained.

In answering this argument, the court in defining “riot” said:

“The defendant contends that these counts [5th and 6th] omit many of the definitions of riot at common law, and essential to an indictment. We agree with all of the definitions, but disagree with the defendants’ conclusions as to their effect on this indictment. At common law it was necessary that three or more persons be unlawfully assembled to carry out a common purpose in such violent or turbulent manner as to terrify others, and assault or destruction of property may or may not be incident to the execution of the riot. The assembly must be unlawful, else there is no riot, and the unlawful assembly must be charged in the indictment. Hochheimer, Crim. Law, secs. 429-431.”

The court then pointed out that:

“One person can be charged with rioting, provided he is alleged to have been so engaged with at least two other persons. If known to the grand jury, they should be indicted; if unknown, it is essential that the indictment so state. If three are indicted by name, and there is no charge that divers others were associated with them, then a conviction of two would be invalid.”

In concluding that there was no objection to either the fifth or sixth counts of the indictment the court, quoting from Commonwealth v. Berry, 5 Gray (71 Mass.) 93, said:

“It is undoubtedly true that a riot cannot ordinarily be committed by one person. It is the acting in concert, the unlawful combination, which constitutes the offense. * * * Whether the other rioters were named in the indictment, or not, proof of a riot in which any two other persons joined with the defendant was sufficient.”

Here, not only did the indictment allege that the defendant, together with divers persons to the jurors unknown, unlawfully, riotously and tumultuously, did assemble, but the proof showed that approximately two hundred inmates of the penitentiary participated. All those known were indicted, but since it would have been an unreasonable burden on the State to name them all in one indictment, they were indicted separately.

The argument that the indictment contains no allegation of intent therein presents no problem. The definition of “riot” in the Cohen case does not set forth as an essential element of the crime of riot a specific intention. 77 C.J.S. Riot §6, p. 426, says:

“It has been said that ‘a mutual intent to assist one another against any who shall oppose them’ is an element of the offense of riot, but it seems that, while this specific intention may be held by rioters, it is not in general essential to the offense, and a previous agreement or conspiracy need not be shown. The intention which is generally an element of the offense is the intent to join in or encourage the acts which constitute the riot, namely, the assembly, violence, turbulence, and the act violently and turbulently performed.”

See also 2 Wharton, Criminal Lem and Procedure, §862. Since this is a matter of proof, it is not an essential requisite of the indictment.

We find no objection to the indictment returned against appellant in this case.

II

Appellant next challenges the sufficiency of the evidence. He contends that the State failed to prove all of the essential elements of the crime of riot as defined by the trial judge in his instructions to the jury. The trial judge defined riot as “the disturbance of the peace by three or more assembled persons to carry out a common purpose in such violent and turbulent manner as to terrify others.” Appellant argues that terror of others is an essential element which the State failed to prove. This argument is based on the fact that the State offered no direct evidence to show that any of the witnesses, inmates of the penitentiary, or residents of the City of Baltimore were placed in fear or terror as a result of the riot.

In order to overturn a judgment entered on the verdict of a jury for insufficiency of the evidence, it is necessary that there be no legally sufficient evidence or inferences drawable therefrom on which the jury could find a defendant guilty beyond a reasonable doubt. Agresti v. State, 2 Md. App. 278, 234 A. 2d 284 (1967); Loker v. State, 2 Md. App. 1, 233 A. 2d 342 (1967); Graef v. State, 1 Md. App. 161, 228 A. 2d 480 (1967).

There is ample evidence in the record in this case from which the jury could find that a disturbance of the peace took place in the Maryland Penitentiary in which approximately two hundred inmates assembled to carry out a common purpose in a violent and turbulent manner and that such conduct on their part could terrify others, both in or out of the institution. The testimony shows that the inmates involved were behaving tumultuously and in a violent manner, smashing windows, burning and looting. Also, the news was broadcast over the radio that there was trouble at the penitentiary and for all officers to report. Moreover, there may be a riot, even though no person or persons are actually terrified, if the violent and turbulent execution of any unlawful act committed by a sufficient number of persons tends to alarm and terrify law-abiding citizens in the peaceful exercise of their constitutional rights and privileges. 77 C.J.S. Riot §10, p. 427-428. See also 2 Wharton, Criminal Raw and Procedure, §864.

We find appellant’s second contention to be without merit.

Ill

Appellant’s final contention is that the consolidation of his case with that of Cletus Bane, another defendant charged with participating in the same riot for which appellant was charged, was prejudicial to his right to a fair and impartial trial.

Appellant admits that he has no legal authority for this contention, but seeks to rely “on the fundamental faults of human nature and the basic rights of an accused to be tried on the merits of his case.” He argues that Bane was a white man, neatly dressed and softspoken, who offered a good appearance, while appellant was an austere Negro whose speech was wanting in mellowness, dressed in prison working attire and who was serving a life sentence for murder.

Maryland Rule 734 provides that: “The court may order two or more indictments to be tried together if the offenses and the defendants, if there be more than one, could have been joined in a single indictment.” The matter is within the discretion of the court and we see no abuse of discretion. The answer to appellant’s contention is that there was a drastic contrast in the evidence produced against the appellant and the other defendant. Only one witness testified against Cletus Bane and that witness’ testimony was subject to serious doubt. On the other hand, appellant was identified by three witnesses as a participant and there was no evidence produced at the trial to challenge their credibility. Under the testimony there was ample evidence from which the jury could find appellant guilty. The fact that the other defendant was found not guilty is no indication of prejudice against appellant. Rather, it is an indication that the jury’s verdict was based solely upon the evidence.

Appellant’s final contention is without merit.

Judgment affirmed.

      . The fifth count charged that “Harry Cohen, on the said day in said year, at the City aforesaid, together with divers persons to the Jurors aforesaid unknown, unlawfully, riotously and tumultuously, did assemble and gather together to disturb the peace of the said City and State; and then and there being so gathered together, did make a great noise, riot, tumult and disturbance, and then and there unlawfully, riotously and tumultuously remained and continued together for a long space of time, to wit, for the space of fifteen minutes and more next following, to the great terror and disturbance of the persons thereabout inhabiting, residing and being, and passing and repassing upon the public highway there, and to the terror of the people of the said State,” etc.


author: Thompson, J.,

text:
    WILLIAM HALLY FRAZIER v. STATE OF MARYLAND
    [No. 99,
    September Term, 1967.]

      Decided April 1, 1968.

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

      Robert F. Freeze for appellant.

      William B. Bramian, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State's Attorney for Baltimore City, and Joseph Howard, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

William Hally Frazier, the appellant, complains of a conviction for murder in the first degree in a jury trial before Judge Meyer M. Cardin in the Criminal Court of Baltimore. He lists a number of grounds for appeal which will be enumerated and discussed hereinafter.

There was evidence from which the jury could have found the following facts.

On July 11, 1965, Frazier walked into a Crown Service Station on West Franklin Street in Baltimore and killed the deceased in the presence of two eyewitnesses; both of whom testified substantially as follows: That Frazier walked into the service station, said something to the deceased then pulled a revolver from under his shirt, shot the deceased once; that the deceased grabbed Frazier who broke loose and shot the deceased once more; that Frazier then started out the door but turned and shot the deceased for the third time. The medical examiner confirmed that the deceased died from three bullet wounds. One of the eyewitnesses informed a police officer of what had occurred, and the officer immediately arrested Frazier. The witness told a second police officer that he had observed Frazier walking towards a truck, later determined to be owned by Frazier, parked on a street near the station. The officer upon locating the truck, found the window down and the glove compartment door open. Inside the glove compartment, he saw a revolver, which was photographed in position and then seized. A firearms and ballistics expert testified that the bullets in the deceased’s body had been fired from the pistol which Frazier later admitted belonged to him. Fie claimed, however, that there were no other people in the station and that he shot the deceased only after he had been hit on the head with a bottle. Obviously the jury disbelieved his claim of self-defense.

I

Frazier’s first contention is that under Preston v. United States, 376 U. S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 the seizure of the gun was unreasonable and not incident to a lawful arrest. That case does not seem to control the present one. In Preston the vehicle was removed to a police station and searched much later. Although, here, Frazier was arrested a few blocks away from the location of the vehicle, the seizure occurred almost simultaneously and was not preceded by an unauthorized search. The officer simply picked up what was in plain view near the scene of the crime. We recently considered a seizure under similar circumstances in the case of Wilson v. State, 2 Md. App. 210, 214, 233 A. 2d 817 wherein we said:

“It is clear, however, that the warrantless seizure of the shotgun offered into evidence was not incident to the arrest and cannot be sustained as incidental thereto, even though the arrest was lawful, for ‘a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. Agnello v. United States, 269 U. S. 20. See also Stoner v. California, 376 U. S. 483; Preston v. United States, 376 U. S. 364. Here, the arrest was not in the immediate vicinity of the car and was effected nearly an hour after the search and seizure.
“We are of the opinion, nevertheless, that the seizure of the shotgun without a warrant was, under the circumstances, lawful. It is apparent that the seizure in this instance does not fit neatly into any of the several categories or exceptions which have been carved out of the Fourth Amendment prohibition against searches and seizures without a warrant. However, as this Court said in St. Clair v. State, 1 Md. App. 605, at page 617:
* * the relevant test is whether the search was reasonable under all of the circumstances, for it is only unreasonable searches that are prohibited by the Fourth Amendment. Carroll v. United States, 267 U. S. 132 (1925); Stewart v. State, 1 Md. App. 309 (1967). And that which is reasonable cannot be determined by any fixed formula, United States v. Rabinowitz, supra, nor can it be stated in rigid and absolute terms, Harris v. United States, 331 U. S. 145 (1947). In short, whether a search and seizure is reasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case.’ ”

We find the seizure here, under the circumstances of this case, entirely reasonable.

II

Frazier, next, contends that there was a defective link in the chain of custody of the weapon after it was seized by the police. The objection to the evidence was based specifically on the grounds of unreasonable search and seizure and not upon a defective link in the chain of custody; therefore under Maryland Rule 1085 and Maryland Rule 522 the matter is not properly preserved for appeal, Wilt v. Wilt, 242 Md. 129, 218 A. 2d 180. In Avey v. State, 1 Md. App. 178, 187, 228 A. 2d 614 this court quoted the Court of Appeals in the case of Breeding v. State, 220 Md. 193, 199, 151 A. 2d 743, 747 as follows:

“The question is one of reasonable probability that no tampering occurred.”

It is apparent from this record that no tampering occurred with the weapon, and that there was no error in its admission even if the matter were properly before us.

III

Frazier also contests the fact that evidence of probable cause was taken in the presence of the jury. Not only was there no objection on this ground but also counsel below specifically agreed to the taking of the testimony before the jury. Under Maryland Rule 1085 there is nothing before this court for review. It should be noted that this case was tried prior to September 1, 1967, the effective date of Maryland Rule 734 d 2 requiring that such testimony be taken out of the presence of the jury.

IV

Frazier objects to the failure of the trial court to make rulings on the objections disclosed in the record as follows:

“QUESTION: How long did it take you to pull the trigger three times ?
MR. FREEZE: Objection. The Witness didn’t say how many times he pulled it.
THE WITNESS: I don’t know how many times I pull it. I didn’t say I pulled three times.
BY MR. HOWARD: How many times did you pull it?
MR. FREEZE: Objection.
THE WITNESS : I do not know.
BY MR. HOWARD: Did you pull it more than one?
MR. FREEZE: Objection.
WITNESS: I don’t know.
MR. HOWARD : You don’t know how many times you pulled the trigger ?
MR. FREEZE: Objection.
WITNESS: No, I do not.
MR. FREEZE: He has answered that * *

While it is the duty of the trial judge to rule on each objection, it is apparent to us that on the facts of this case there was no prejudice to the appellant’s case from failure to make the rulings here. Under Maryland Rule 522 this court cannot review matters of evidence which were not presented to and ruled on by the trial court, Fowler v. Benton, 229 Md. 571, 185 A. 2d 344. If the appellant felt that the answers were prejudicial, he should have made a motion to strike them. In all fairness to the trial judge it should be stated, however, that it is apparent from reading the record that on cross-examination Frazier was answering the questions too quickly for the court to make rulings prior to his answers.

V

Frazier further complains that he was questioned on cross-examination concerning admissions or statements he had given to the police after the arrest when voluntariness of the same had not been established. The specific complaint is shown in the following questioning:

“A. Was I taken to the Police Station? Yes, I was.
Q. And you were interrogated there? You were questioned there ?
MR. FREEZE: I would object to the question, your Honor.
THE COURT: Answer the question. Were you?
THE WITNESS: A couple of words — not too much.
MR. FREEZE: I would object as to any questioning about that, at this stage.
THE COURT: The answer was, yes, a couple of words; not too much.
BY MR. HOWARD: Q. What you told the police, was it true ?
MR. FREEZE: Objection.
THE COURT: Overruled.
BY MR. HOWARD : Q. Answer the question, Mr. Frazier. Did you tell the police the truth on July 11, 1965?
A. Yes, I did.”
* * *
“QUESTION: Did you tell the police at Western Station that you weren’t even there when the shots were fired ?
MR. FREEZE: Objection.
THE COURT: Overruled. You may answer the question. Did you or didn’t you ?
THE WITNESS: I didn’t tell the police anything like that.
BY MR. HOWARD: Didn’t tell them that. Did you tell the police that you didn’t do the shooting at all?
MR. FREEZE: Objection.
THE COURT: Overruled. Did you or didn’t you?
BY MR. HOWARD: Do you understand the question, Mr. Frazier?
ANSWER: Ask it again, will you please?
MR. HOWARD: Would you read it back?
(Whereupon, the question referred to above was read back by the reporter.)
THE WITNESS: I don’t know exactly what I told the police.
QUESTION : Did you tell the police about that?
MR. FREEZE: Objection.
THE COURT: Overruled.
QUESTION: Did you tell the police about that?
THE COURT: If you remember. Did you or didn’t you?
QUESTION: Do you understand the question, Mr. Frazier?
ANSWER: (no response)
QUESTION: Do you understand the question, Mr. Frazier?
ANSWER: No, I didn’t tell the police.
* * *
QUESTION: Did they ask you about blood on your shirt, Mr. Frazier?
MR. FREEZE: Objection.
THE COURT: Overruled.
WITNESS: (no response)”

Without proof of voluntariness such use of admissions or confessions resulting from in-custody interrogations would seem to be error under Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. The current trial, however, took place prior to June 13, 1966, the effective date of the Miranda decision, Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882, Meadows v. Warden, 243 Md. 710, 222 A. 2d 249.

It appears to us, beyond a reasonable doubt, on the facts of this case, that the effects of the cross-examination on the outcome of the trial was so minimal as to be completely harmless.

VI

The next question Frazier presents is that he was placed in double jeopardy by reason of the fact that he was reindicted after he elected to avoid a prior indictment under Schowgurow v. State, 240 Md. 121, 213 A. 2d 475. This court has many times answered this contention contrary to the appellant’s position. One of the later cases is West v. State, 3 Md. App. 123.

VII

Frazier also contends that there was insufficient evidence to support his conviction. The aforegoing summary of the testimony of the two eyewitnesses to the murder amply demonstrates that this contention is frivolous, Price v. State, 3 Md. App. 155.

VIII

Frazier complains of the failure to grant his three motions for a mistrial. The first motion was based upon some statement of the State’s Attorney in the opening argument. Since there is nothing in the record concerning what remarks were made, there is nothing before this court to review. Maryland Rule 1085. The second motion is based upon the State’s Attorney offering evidence concerning probable cause before the jury. Inasmuch as this procedure was specifically approved by defense counsel, he cannot now complain. Maryland Rule 1085.

The third motion was made at the conclusion of the State’s final argument and embraced four points concerning the argument :

“a. Criticized defense counsel for making objections and going to the Bench to argue same.”

We have read the argument as presented in the record and find no basis for this ground as the argument contained no such criticism.

“b. Stated ‘Reasonable doubt ... is the first admission of the defense that they have given up all hope in their case, and they are trying to find some weakness in mine.’ ”

This seems to us to be a legitimate argument; the appellant cites no authority to the contrary.

“c. Asserted his personal belief as to the guilt of the accused.”

To support this ground he quotes Toomer v. State, 112 Md., 285, 292, 76 A. 118:

“It is unquestionably wrong for the State’s Attorney in his argument to the jury to refer to any matter not testified to by the witnesses or disclosed by the evidence in the case, and it is his duty to confine his remarks to the facts in the case, [he did not add] but if every remark made by counsel in the heat of argument, not strictly applicable to the evidence offered, is to be held sufficient ground for reversing a judgment, few convictions would stand.”

On this specific point the Court of Appeals in Riggins v. State, 125 Md. 165, 174, 93 A. 437 said, quoting People v. Weber, 149 Cal. 325, 334, 86 P. 671, 677:

“But, upon the other hand, such prosecuting officer has the undisputable right to urge that the evidence convinces his mind of the accused’s guilt. Indeed, it would be mere stultification if it were contended that the prosecuting attorney could argue to the jury that the evidence should convince their minds although it did not convince his. A prosecuting officer therefore has the right to state his views as to what the evidence shows.”

See also Shoemaker v. State, 228 Md. 462, 474, 180 A. 2d 682, 688.

“d. Commented on the failure of the defendant to produce evidence.”

This objection was based on the State’s Attorney’s comments on the failure of the accused to produce any testimony corroborating his own that he had received injuries at the hands of the deceased. On the facts of this case when two eyewitnesses had testified that there were no such injuries it seems to us that this was a fair argument. Frazier cites no authority to the contrary and we know of none.

Judgment affirmed.


author: Per Curiam.

text:
    JAMES WALTER BOOTH, JR. v. WARDEN, MARYLAND HOUSE OF CORRECTION
    [No. 114,
    September Term, 1967.]

      Decided April 1,1968.

    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 Stuart F. Hamill sitting in the Circuit Court for Allegany County denying relief prayed under the Uniform Post Conviction Procedure Act.

The applicant alleged in his petition for relief:

(1) that at his trial at which he was convicted of assault with intent to carnally know a female under the age of 14 years, his wife “was forced to testify by the State’s Attorney” on the threat that if she did not testify the State’s Attorney would bring out her “past criminal background”, and that her testimony was “prejudiced” ;
(2) that one of the two judges who presided at his trial was prejudiced;
(3) that it was impossible for him to have received an “unbias trial” due to “local newspaper advertisement” of his case;
(4) that his counsel was incompetent “as he even failed to cross-examine” the appellant’s wife;
(5) that he made oral statements to the police without being advised of his rights and “without presence of counsel” ;
(6) that evidence “obtained through an illegal search and seizure, presented to the Court, even though ordered stricken from the record was hard to erase from the minds of the two presiding Judges”;
(7) that the evidence was not sufficient to sustain the conviction.

The applicant was afforded a full evidentiary hearing at which he was represented by counsel appointed for him. Nine witnesses testified, including both judges who presided at his trial, his wife and the attorney representing him at the trial, privately retained, who had been a member of the bar for 50 years and had extensive experience in the defense of criminal matters. We have reviewed the transcript of the testimony at the hearing.

With regard to the first allegation, the applicant testified that he had not heard the State’s Attorney threaten his wife but was told of the threats by someone whose name he refused to divulge. We find nothing in the testimony of the applicant or his wife to show that her testimony at the trial was prejudiced. There is no merit in the allegation.

With regard to the second allegation, we agree with the finding of the hearing judge that there was not “an iota or scrap-, of evidence whatsoever” that the trial judge about whom the applicant complained was “in any way prejudiced in this, case.”

With regard to the third allegation, the hearing judge found that there was not “a bit of competent testimony or evidence presented * * * to show that there was any impartiality (sic.) or prejudicial statements by the newspapers.” We agree. See McCoy v. Warden, 1 Md. App. 108.

With regard to the fourth allegation, assuming it to be true„ the failure to cross-examine is a matter of trial tactics and not per se sufficient to show that counsel was incompetent. Hines v. Warden, 236 Md. 406; Norris v. Warden, 1 Md. App. 69. At the hearing the allegation was made that counsel at the-trial had failed to call witnesses suggested by the applicant.. Counsel testified that he talked to the suggested witnesses and they had no evidence which was relevant to the trial. Three of them testified at the hearing and had no personal knowledge of the case. The hearing court found that the applicant’s counsel was justified in not calling the witnesses at the trial and we-agree. At the trial, counsel, by timely objection, was successful' in having a statement made by the applicant to the police kept out of evidence, made motions for judgment of acquittal and’ advised the applicant not to testify. We find nothing in the record to show that the applicant was not afforded a genuine and’ effective representation at his trial. Ross v. Warden, 1 Md. App. 46.

With regard to the fifth allegation, as we have noted, the-statement of the applicant was not received in evidence at his trial. By the applicant’s own words in stating the sixth allegation, the evidence complained of was not admitted at his trial. The allegations have no merit. See Hutchinson v. State, 1 Md. App. 362; Stackhouse v. State, 1 Md. App. 399.

With regard to the seventh allegation, the sufficiency of the evidence to sustain the conviction is not to be considered in a post conviction procedure. Nixon v. Director, 1 Md. App. 14; Lyde v. Warden, 1 Md. App. 423.

At the hearing, a question arose as to direct appeal from the judgment against the applicant. It was shown that a timely appeal was noted by counsel who then wrote the applicant:

“I wish to advise that to protect any rights which you might have, I have filed an order for appeal to the Court of Appeals. If you wish this case to be appealed and tried on Appeal, you should write to Judge Naughton at Cumberland, and if you have no funds with which to pay for the appeal, tell the Court this in a letter, and ask him to appoint some lawyer to handle the case for you.
Please let me know at once if you receive this letter and what you want done concerning the appeal.”

'The appeal was not perfected. The applicant admitted receiving 'the letter, and claimed he wrote both the presiding judges asking that counsel be appointed for him. Both judges testified that they had not received such a request. The hearing judge found that the evidence clearly indicated that counsel had advised the ■applicant “exactly what he should do with regard to taking an -appeal to the Court of Appeals and he failed to do it.” We agree. See Wampler v. Warden, 231 Md. 639, 651.

In the application for leave to appeal the applicant attempts to raise two additional allegations. He claims counsel representing him at the post conviction hearing was incompetent ■and that he was denied a transcript of his trial. The applicant mentioned during his testimony at the hearing that he needed the transcript to ascertain the name of a police officer who could "testify in his behalf. Although it is not clear from the record, it appeared that the applicant thought that his wife had called someone and that the officer knew whom she had called. But "he made no proffer of what his wife said to the unknown man saying only that the officer “could testify that that night if it "was the man that she called that what went on that night.” IFrom the record we do not think that any rights of the applicant were denied by the failure to furnish him a transcript. See Klein v. Warden, 233 Md. 603. The question of competency of counsel at the post conviction hearing was not raised below and is not properly before us. Md. Rules, 1085. In any event, the transcript of the proceedings shows clearly that the applicant was afforded competent representation at the hearing.

Application denied.