author: Orth, J.,

text:
    WAYNE CURTIS GREATHOUSE v. STATE OF MARYLAND
    [No. 143,
    September Term, 1968.]

      Decided January 20, 1969.

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

      James Robert Miller, with whom was William C. Miller on the brief, for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Williwm A. Linthicum, Jr., State’s Attorney for Montgomery County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The history of this case, as yet not tried on the merits, runs an unusual course. Four separate indictments, charging offenses proscribed by Md. Code, Art. 27, §§ 7, 8 and 10, have been returned against the appellant. Each indictment arose from the same alleged acts of the appellant involving the same burning or attempting to burn personal property and a building on 15 April 1966.

Indictment No. 7851 was filed on 7 June 1966. It contained four counts: (1) burning personal property of another over the value of $25 — § 8;- (2) attempting to burn personal property of another — § 10; (3) burning an office building — •§ 7; (4) attempting to burn such building- — § 10. The docket entries show that the appellant was arraigned on 12 August but no plea was entered. On 22 August he filed a motion for discovery and inspection and a motion to. dismiss the indictment. Qn 16 September a continuance -was granted -upon petition of the appellant. -On 20 October the State answered the motion for discovery and on 24 October a supplemental motion for discovery was filed. On 28 October an amended motion to dismiss was filed and denied upon hearing. The same day the State’s motion to amend the indictment by interlineation was granted. On 9 February 1967 a motion by'the State for a continuance was granted. On 15 February the appellant filed a motion for a speedy trial. On 8 May a request by the State to place the case on the stet docket was denied, whereupon the State entered a nolle prosequi.

Indictment No. 8323 was filed on 8 February 1967. It contained six counts. Its first count was the same as the first count in No. 7851 except that it omitted the word “unlawfully” in charging the offense. Its second count differed from the second count of No. 7851 in that it added the words “wilfully and maliciously” in charging the unlawful attempt, added that the value of the personal property was over $25 and also charged a certain preliminary act proscribed by § 10. The third count charged a storehouse breaking with intent to commit a felony — ■ to wit: The burning of personal property of another over the value of $25. The fourth count, charging the offense charged in the third count of No. 7851, differed from that count in that it described the office building as “not a parcel of a dwelling house.” The fifth count, charging the offense charged in the fourth count of No. 7851, also added such description and charged also a preliminary act proscribed by § 10. The sixth count charged a storehouse breaking with intent to commit a felony, to wit: The burning of the office building. The docket entries show that the appellant was arraigned on No. 8323 on 9 February 1967 and pleas of not guilty were entered by direction of the court, the appellant standing mute. On 28 March the appellant moved to inspect the minutes of the grand jury and for a bill of particulars. Both motions were denied upon hearing on 14 April. On 8 May he filed a motion for discovery and inspection and on 11 May a motion to dismiss. The motion to dismiss the indictment was granted upon hearing on 29 June.

Indictment No. 8851 was filed on 8 September 1967. It contained four counts. Its first count charged the wilful and malicious burning of the personal property, over the value of $25 and of another — § 8 — and specifically listed the property. The second count charged the attempt to burn such property and a preliminary act proscribed by § 10. The third count charged the burning of a building, not a parcel of a dwelling house — § 7 — and particularly described the ownership and location of the building. Count four charged the attempt to burn such building and a preliminary act proscribed by § 10. Each count also charged that the appellant “aided, counseled or procured” the burning. The docket entries show only: “Sept. 8, 1967 — Presentment : Indictment: True Bill, fd.”

Indictment No. 8934 was filed on 5 October 1967. Its four counts read substantially the same as the four counts in No. 8851 except that each count omitted the phrase “or aided, counseled, or procured the burning.” The docket entries show that the appellant was arraigned on 19 October and a plea of not guilty was entered “by his country”; that he filed a motion to dismiss the indictment on 14 November; that on 3 January 1968 “order of court that motion to dismiss Indictment by Defendant is hereby dismissed” was filed and on the same day, upon motion of the appellant, that order was vacated and a hearing on the motion to dismiss was set; that the hearing was held on 28 February and that by order of 6 March the motion to dismiss was granted as to the fourth count and denied as to the first, second and third counts. On 20 March the appellant noted an appeal from the denial.

The motion to dismiss indictment No. 8934, filed on 14 November 1967, attached as exhibits copies of the three preceding indictments, copies of the docket entries pertaining thereto, a transcript of the hearing on 8 May 1967 at which a nolle prosequi was entered to indictment No. 7851, a transcript of the hearing of 9 February 1967 whereat the State was granted a continuance as to indictment No. 7851, a copy of a motion for a speedy trial on indictment No. 7851 “as previously requested in open court at the hearing on February 9, 1967” (the motion was filed 15 February 1967), a copy of a letter dated 5 July 1967 from defense counsel to the State’s Attorney claiming the denial of a speedy trial and alleging prejudice to the appellant in that “his business has been ruined”, he is now not able to obtain a fair trial, one witness has been “lost” and others may be unavailable. It suggested that if the charges were to be resubmitted it should be done immediately “without waiting for the next regular session of the Grand Jury” and if so a motion to dismiss for lack of a speedy trial would be filed. The grounds for the motion were that the appellant had been placed in jeopardy by the nolle prosequi entered as to indictment No. 7851, that he had been denied a speedy trial and that the indictment was defective.

At the hearing on the motion on 28 February 1968 a stipulation was received to the effect that the exhibits filed with the motion were “correct and true copies of what they purport to be” and that the stipulation “may be used by (the court) in determining whether to grant or deny” the motion. No other evidence was produced, although counsel for the appellant and the State’s Attorney argued at length. At the conclusion of the hearing the court took the matter “under advisement.” On 6 March an opinion and order dated 4 March were filed. The court found that the fourth count charged the common law offense of attempt but failed to allege that the offense was “unlawful.” For that reason it granted the motion to dismiss the fourth count. Holding that the first, second and third counts were valid and finding no merit in the contentions as to speedy trial and double jeopardy, it denied the motion as to the first, second and third counts.

The contentions on appeal are in substance those raised by the motion and argued at the hearing thereon. The appellant contends that the lower court erred in the denial as to counts one, two and three for the reasons that:

I the indictment is defective in that:
1) the first and third counts fail to allege the acts were committed unlawfully;
2) the property alleged to have been burned as charged in the first and second counts is not encompassed within Art. 27, §§ 8 and 10 but is excluded under the doctrine of ejusdem generis;
3) the first and second counts fail to apprise him of the location of the personal property he is alleged to have burned or attempted to burn.
II he was denied a speedy trial;
III he was denied due process of law;
IV he has been placed in jeopardy on the charges and cannot be further prosecuted.

I

THE ALLEGED DEFECTS IN THE INDICTMENT

The general rule is that an appeal in a criminal case is premature until after final judgment. State v. Harman, 199 Md. 209, 212. See Md. Code, Art. 5, § 12; Md. Rule, 1035(a). There has been applied through the years, with qualifications, a corollary to the general rule; action of the trial court which denies an absolute constitutional right, although seemingly interlocutory, will be reviewed on appeal. Pearlman v. State, 226 Md. 67. Thus it is established that an appeal will lie, prior to a trial on the merits, on the denial of a motion asserting a violation of the constitutional right to a speedy trial, Stevenson v. State, 4 Md. App. 1, 10, or that the accused was twice placed in jeopardy, Brown v. State, 2 Md. App. 388, 394. But the action of the lower court here in denying the motion to dismiss with respect to the alleged defects in the indictment did not involve the denial of an absolute constitutional right and is not within the corollary to the rule. The appeal in that regard is premature and we do not consider the contentions with respect thereto.

II

SPEEDY TRIAL

The appellant sought a speedy trial only on indictment No. 7851. Trial under No. 7851 had been set for 15 February 1967, but on 8 February indictment No. 8323 had been filed and the appellant was brought into court the next day for arraignment on that indictment. At arraignment he stood mute, and not guilty pleas were entered by direction of the court. See Md. Rule 721. The State then requested a continuance of No. 7851, arguing that the appellant had been granted a continuance on 16 September 1966 because he needed time to prepare his case and that the State was “entitled to one continuance at least for preparation of this case.” The appellant objected, asserting that he was ready for trial as set, that he had summoned about 20 witnesses, “many of whom had been served” and that trial had been set for several weeks. He demanded a speedy trial “in the old case.” The court granted the continuance with no date specified for trial. On 15 February the appellant filed a written motion for a speedy trial on indictment No. 7851. At that time both No. 7851 and No. 8323 were outstanding, but the State made no effort to bring No. 7851 to trial and the appellant made no demand for the trial of No. 8323. On 8 May, in open court, the State requested that No. 7851 be placed on the stet docket. Defense counsel objected — “we feel he has been denied a speedy trial by now and to stet it would be further evidence of that.” The court refused to consent to the entry, see Md. Rule 718, stating that “the State should make up its mind whether it is going to proceed in 7851, or in the subsequent case, to either dismiss it or try it.” The State said that it could enter a nolle prosequi, the court agreed that it had a right to do so, and the State did so over objection. The appellant has consistently relied on the validity of his contention that the failure to bring him to trial on No. 7851 between the period 9 February to 8 May 1967 constituted a delay in the constitutional sense. This may account for his failure to demand a speedy trial on each of the subsequent indictments. With respect to No. 8323 he filed motions on 28 March 1967 to inspect the grand jury minifies and for a bill of particulars, both of which were denied upon hearing on 14 April, and on 8 May for discovery and inspection. On 11 May he moved to dismiss No. 8323. The grounds for that motion or the reasons it was granted upon hearing on 29 June do not appear in the record, but apparently it was not because of a violation of a constitutional right; defense counsel stated in argument on the subsequent hearing on the motion to dismiss No. 8934 that it was because of “the defection in the description of the property.” From 29 June to 8 September there was no indictment pending against the appellant. During that period, on 5 July, defense counsel wrote the State’s Attorney, suggesting, if the prosecutor felt compelled to re-submit the charges, that it be done immediately without waiting for the next session of the grand jury. But he did not ask for a speedy-trial in the event the appellant was again indicted, but said that he would then move that the indictment be dismissed for lack of a speedy trial. On 8 August the State’s Attorney replied, confirming a conversation with counsel concerning the letter of 5 July, that the case would be re-submitted to the grand jury during the first week of September and if this was not satisfactory, he would proceed on a bill of information upon request. The record does not show, nor does the appellant allege, that he sought an immediate trial by waiving his right to action by the grand jury pursuant to Md. Rule 709. Indictment 8851 was returned on 8 September. The record does not show, nor does the appellant allege, that he demanded a speedy trial of No. 8851, nor does it show other than that the appellant was presented, indicted and a true bill filed. The appellant in his brief states that on 16 May 1968, since this appeal was noted, a nolle prosequi was entered. On 5 October 1967, however, indictment No. 8934 was filed. The appellant was arraigned thereon and a plea of not guilty entered “by this country.” He made no demand for a speedy trial thereon, but moved to dismiss the indictment on 14 November and appealed from the order thereon of the lower court of 6 March 1968. So, with respect to denial of a speedy trial, error by the lower court in denying the motion to dismiss No. 8934 depends upon whether he was denied a speedy trial of No. 7851. If he was denied a speedy trial of that indictment, it would bar further prosecution. We said in Brown v. State, 2 Md. App. 388, 398, “[W]e think it obvious that if prosecution of an offense is barred because an accused was not afforded his constitutional rights, he thereafter cannot be tried for that offense, and the return of another indictment could not overcome the prior violation of his constitutional rights.” But if he was not denied a speedy trial under No. 7851, there was no denial of such right under the subsequent indictments, for it is established that the right may be waived by failure to demand it or by the conduct of the accused. Hall v. State, 3 Md. App. 680; Kelly v. State, 2 Md. App. 730; Scott v. State, 2 Md. App. 705; State v. Long and Nelson, 1 Md. App. 326.

As the appellant concedes that the period from 7 June 1966, when No. 7851 was filed, to 9 February 1967 was not chargeable to the State, the only period involved is the 3 months from 9 February to 8 May 1967 when the nolle prosequi was entered. We think it clear that this period is not one of constitutional dimension. Stevenson v. State, supra. There being no unconstitutional delay, whether there was or may have been prejudice to the appellant’s case is not determinative of the denial of a speedy trial. Hall v. State, supra. We think that the period to be considered with regard to No. 7851 terminated on 8 May 1967 at the time of the entry of the nolle proseqtii. The appellant apparently feels that he had a right to be tried on No. 7851. An accused has no right per se to be tried on a particular indictment. The entry of a nolle prosequi, with the limitation that it be entered in open court as required by Md. Rule 711, is a matter within the exclusive province and discretion of the State’s Attorney. The appellant was not entitled to compel the State to make a choice between proceeding to trial on No. 7851 or entering a “not guilty confessed.” The State had the right to enter the nolle prosequi and as it was entered before trial had begun, its only effect was to finally determine that case, precluding the State from further prosecution under that indictment. Barrett v. State, 155 Md. 636. The Court said in Barrett, in holding that a nolle prosequi was a final determination of the case, that “it would be intolerable, and subversive of the constitutional rights of the accused to a speedy trial, if the State’s Attorney had the power, with or without the concurrence of the court, to discontinue the trial by the entry of such an order, and at some future time again put the accused to trial under the same indictment.” at 637-638. But it made clear, the nolle prosequi having been entered before trial commenced, that the accused remained subject to being proceeded against by another indictment for the same offense. “In justification of the practice which seems to have prevailed for so long everywhere, it can properly be said that the accused does not, in law, remain under the imputation of guilt after a nolle prosequi has been entered. The abandonment of the prosecution cancels that indictment and restores him to his original position.” 155 Md. 638. It is this which distinguishes the instant case from Klopfer v. State of North Carolina, 386 U. S. 213, cited by the appellant, where the nolle prosequi was the equivalent of a stet in Maryland, permitting further prosecution under the indictment. Since the appellant could not be tried under No. 7851 after the nolle prosequi was entered, he no longer had the right to a speedy trial with respect thereto. That is to say, álthough an accused has the right to have an outstanding indictment brought to trial within such time as to afford him a speedy trial, once prosecution can no longer be pursued under that indictment, as, for example, by the entry of a nolle prosequi or by an order of court dismissing it, he no longer enjoys that right, for the right, under that indictment, is terminated when the case is so finally determined. Therefore the appellant, whose right to a speedy trial under No. 7851, as we have found, was not violated while the indictment was outstanding, could not claim that right after the indictment became ineffective. His right to a speedy trial on the offenses, however, accrued to him under the other indictments from time to time outstanding. But he did not assert the right under the subsequent indictments. In fact No. 8323 was dismissed on his own motion, a nolle prosequi was entered as to No. 8851 before any trial commenced and he chose to move to dismiss No. 8934 rather than demand a trial thereon. And between the period 29 June and 8 September 1967 there was no case to be tried as no indictment was outstanding. By the entry of the nolle prosequi to No. 7851 and the dismissal of No. 8823 he was then under no imputation of guilt but was restored, until he was next indicted, to the position he had before any indictment was returned against him. The right to a speedy trial does not encompass the right to a speedy indictment; the general rule is that the right to a speedy trial does not arise until a prosecution has been instituted and an accused cannot successfully complain of delay in the institution of prosecution if it is within the applicable period of limitations. Falcon v. State, 4 Md. App. 467, 470. As to a speedy trial, we find no error in the denial of the motion to dismiss indictment No. 8934.

Ill

DUB PROCESS OF LAW

Our holding that the constitutional right of the appellant to a speedy trial was not violated does not necessarily stand him defenseless against delay by the State in obtaining a proper indictment. If the actions of the State resulted in unreasonable, oppressive and capricious delay, such delay may constitute a denial of due process of law. See Montgomery v. State, 4 Md. App. 473, 480. But this point does not plainly appear by the record to have been tried and decided by the lower court. It was not one of the grounds specifically raised in the motion to dismiss No. 8934, the appellant did not appear to have raised and argued it at the hearing on the motion and the lower court did not discuss it in its opinion and order disposing of the motion. Ordinarily we would not decide it, but we deem it desirable to do so for the guidance of the lower court. Md. Rule 1085.

The appellant now urges that delay was “caused by the State by deliberate choice to obtain a supposed tactical advantage.” We think it apparent that the State obtained successive indictments because it felt that the indictments which preceded No. 8934 were defective as drawn. While we cannot condone the failure of the State to draft the indictment in a manner satisfactory to it in the first, second and third instance, we cannot say that the actions of the State were unreasonable, oppressive or capricious. It was not unreasonable for it to seek to draft an indictment properly charging the offenses. The obtaining of four successive indictments was not oppressive because the record does not show prejudice to the appellant. No evidence of prejudice was produced at the hearing on the motion. Although the record contains, as an exhibit to the motion to dismiss, a copy of a letter from defense counsel to the State’s Attorney in which prejudice was alleged, we cannot construe the stipulation agreed upon as acknowledging on the part of the State, that the allegations were correct. The stipulation was that the exhibit was “a true and correct copy of a letter received by the State’s Attorney’s office on or about July 6, 1967.” The actions of the State were not capricious as they were guided by a steady intent and purpose not adverse to the fair administration of justice. We cannot conclude in the circumstances that the State was prompted by unworthy motives nor by a desire to delay unduly in bringing the appellant to trial. If the tactical advantage the appellant assumes the State sought was to bring him to trial under a proper indictment, as we believe the intent of the State to have been, this did not here deprive him of a constitutional right even though the State may have been inartful in drawing the indictments. We do not think that the course followed by the State led to fundamental unfairness in the circumstances. We feel that the record before us does not sufficiently support the contention that the appellant was denied due process of law so as to compel us to find error with respect thereto in the denial of the motion to dismiss.

IV

DOUBLE JEOPARDY

In Maryland, protection against double jeopardy is available by way of the common law. State v. Barger, 242 Md. 616; Smith v. State, 1 Md. App. 297. In Borne v. State, 3 Md. App. 11 we found that the common law meaning of double jeopardy as stated in Hoffman v. State, 20 Md. 425, 434 was controlling in Maryland:

“At common law it meant nothing more than that where there had been a final verdict either of acquittal or conviction, on an adequate indictment, the defendant could not be a second time placed in jeopardy for the particular offense.”

The appellant here contends that jeopardy attached by the entry of the nolle prosequi to No. 7851 over his objections. But we pointed out in Boone at 25-26 that the entry of a nolle prosequi is not inconsistent with the common law meaning of double jeopardy. We said that if it is entered without the consent of the defendant after trial has begun, jeopardy attaches because it operates as an acquittal. But here the trial had not begun and the entry of the nolle prosequi did not operate as an acquittal and was no bar to future prosecution under another indictment. Barrett v. State, supra. The appellant has never been in jeopardy as there has been no final verdict, either of acquittal or conviction, on an adequate indictment. Therefore he will not be placed twice in jeopardy by reason of coming to trial under indictment No. 8934. As to the contention of double jeopardy, we find no error in the action of the lower court with respect to the motion to dismiss.

Order denying the motion to dismiiss the first, second md third counts of indictment No: 8934 affirmed: case remanded for further proceedings: costs to be paid by the appellant.

      . The crimes proscribed by Md. Code, Art. 27, §§ 7, 8 and 10 were misdemeanors. Ch. 628, Acts 1966, made the crimes proscribed by § 7 — the burning of a building not a parcel of a dwelling house —a felony but § 2 of the Act provided that it did not apply to crimes committed before 1 June 1966. Therefore the crimes intended to be committed by the storehouse breakings charge in counts three and six of No. 8323 were not felonies as alleged, but misdemeanors.

      . A reporter was not present at this hearing and the reasons for the granting of the motion are not disclosed in the record before us. In argument at a hearing on a motion to dismiss Indictment No. 8934 defense counsel stated it was “because of the defection in the description of the property.”

      . The appellant conceded below and in argument on appeal that he was not denied a speedy trial prior to 9 February 1967, delay to that time not being due to the State.

      . We note that a subsequent indictment is not rendered invalid merely by the existence of a prior indictment of the same or a related offense and that if there is some irregularity in an indictment it may be corrected in a later indictment upon which the defendant may then be tried. Barnes and Burgess v. State, 1 Md. App. 123, 126-127.

      . It is otherwise when a nolle prosequi is entered without the consent of the defendant after trial has commenced. It then operates as an acquittal. Friend v. State, 175 Md. 353; Boone v. State, 3 Md. App. 11.

      . See State v. Morgan, 33 Md. 44, distinguishing between a stet and a nolle prosequi.

        . Violations of Md. Code, Art. 37, §§ 7, 8 and 10, misdemeanors when alleged to have been committed by the appellant, were punishable by confinement in the penitentiary. See Md. Code, Art. 57, § 11 as to limitations in bringing prosecution.

      . Even though a motion to dismiss No. 7851 was denied on 38 October 1966 the State was permitted to amend it by interlineation. What the amendment was is not shown by the record before us.

      . But questions concerning the proper drafting of indictments charging arson and statutory proscriptions against burning property have troubled courts and prosecutors in the past. See, for example, Wimpling v. State, 171 Md. 363; Gibson v. State, 54 Md. 447; Kellenbeck v. State, 10 Md. 431; Cochrane v. State, 6 Md. 400; Black v. State, 3 Md. 376.

      . Whether the double jeopardy provision of Amendment V to the Constitution of the United States is applicable to state court prosecutions under the due process clause of Amendment XIV is now before the Supreme Court. Benton v. State, 1 Md. App. 647, cert. den. Court of Appeals of Maryland, 7 December 1967, cert. granted, Supreme Court of the United States, No. 301, 17 June 1968. The issue was posed in Cichos v. State, 385 U. S. 76, but the Supreme Court dismissed the writ as improvidently granted and denied rehearing, 385 U. S. 1030. The Court of Appeals held that the prohibition of double jeopardy in Amendment V was not a requisite of due process under Amendment XIV in State v. Adams, 196 Md. 341, 344.

      . Hoag v. State of New Jersey, 356 U. S. 464, cited by the appellant in argument on appeal, is not apposite. The accused there was tried under three indictments charging the robbery of three individuals. He was acquitted. Then a fourth indictment was obtained charging the robbery of a fourth victim. All the robberies occurred during the course of a hold-up of a tavern and by construction of the New Jersey statute were considered separate offenses. The court stated that the trial and acquittal of the three offenses did not jeopardize the accused as to the fourth offense. It said, however, that even though it was constitutionally permissible for the State to punish the accused for each of the four robberies, it did not necessarily follow that it could prosecute him for each robbery at a different time. “The question in any given case is whether such a course had led to fundamental unfairness” by an attempt “to wear the accused out by a multitude of cases with accumulated trials.” 356 U. S. 467. The Court did not think that the Fourteenth Amendment always forbids States to prosecute different offenses at consecutive trials even though they arise out of the same occurrence and found no constitutional violation in the case before it. The Court also rejected a claim that the conviction was constitutionally barred by “collateral estoppel.” It had “grave doubts whether collateral estoppel can be regarded as a constitutional requirement” but did not decide that question.


source: Caselaw Access Project

license: Public Domain

text:
    JAMES C. PALMER v. STATE OF MARYLAND
    [No. 162,
    September Term, 1968.]

      Decided January 22, 1969.

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

      Karl H. Goodman for appellant.

      Dickee M. Howard, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and C. Allan Herndon, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The questions presented on this appeal involve the application of the rules of law enunciated or construed in United States v. Wade, 388 U. S. 218, Gilbert v. State of California, 388 U. S. 263 and Stovall v. Denno, 388 U. S. 293, to the admission of evidence with respect to the identification of the appellant. The appellant was charged with the crime of robbery with a deadly weapon in each of two indictments, the indictments were tried together by the court in the Criminal Court of Baltimore, he was convicted of the offense under each indictment and a 20 year sentence was imposed on each conviction, the sentences to run consecutively.

The basic principle enunciated in Wade is that a lineup is a critical stage of the prosecution at which the accused is as much entitled to aid of counsel as at the trial itself. 388 U. S. 236. The Court in Wade and in Gilbert then went on to “fashion exclusionary rules to deter law enforcement authorities from exhibiting an accused to witnesses before trial for identification purposes without notice to and in the absence of counsel.” Stovall at 297. As we understand Wade, Gilbert and Stovall, when a post-indictment lineup is conducted for identification purposes without notice to and in the absence of the accused’s appointed counsel:

1) The in-court identifications of the accused by witnesses who viewed such lineup are to be excluded unless the prosecution establishes “by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identifications,” that is that they had an “independent source.” Wade at 240 and 242.
2) Evidence that witnesses identified the accused at such lineup is per se to be excluded. Gilbert at 272-274.
3) The admission of evidence, to be excluded under 1) and 2) is prejudicial error unless, in any event, its introduction was harmless error beyond a reasonable doubt, applying Chapman v. State of California, 386 U. S. 18. Wade at 242; Gilbert at 274.
4) “Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after (12 June 1967).” Stovall at 296.
5) Independent of any right to counsel claim, a confrontation may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to be a denial of due process of law. “However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it * * Stovall at 301-302.

The precise holdings in Wade and Gilbert apply only to a post-indictment lineup conducted for identification purposes without notice to and in the absence of the accused’s appointed counsel. See Tender v. State, 2 Md. App. 692. But the Court said in Wade at 227:

“In sum, the principle of Powell v. Alabama (287 U. S. 45) and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.”

And it stated, Wade at 229:

“The pretrial confrontation for purposes of identification may take the form of a lineup, also known as an ‘identification parade’ or ‘showup’ * * * or presentation of the suspect alone to the witness * * *. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification.”

We think it necessarily follows that the rules of Wade and Gilbert apply also to a lineup conducted before indictment and to other pretrial confrontations within the meaning of Tyler. We again note that in Stovall, at 300, the Court said that Wade and Gilbert affect “* * * all future cases which involve confrontations for identification purposes conducted in the absence of counsel * * (emphasis supplied). It did not limit their affect to “post-indictment lineups.” And we think also that Wade and Gilbert contemplate that if an accused is to be so confronted by identifying witnesses before his trial and is not represented by counsel and cannot afford to employ counsel, counsel must be provided for him unless he intelligently waives the right. Although in Wade and Gilbert counsel had already been appointed and no argument was made in either case that notice to counsel would have prejudicially delayed the confrontations, the Court appeared to recognize that in some circumstances notice to and the presence of the accused’s own counsel would result in prejudicial delay. Wade at 237. And even though the Court did not specifically so state, we think it logically follows that where counsel had not been already appointed, the time necessary to have counsel. appointed and assure his presence would, in some circumstances, result in delay prejudicial to the prosecution. But the Court expressly left open the question “whether the presence of substitute counsel might not suffice where notification and presence of the suspect’s own counsel would result in prejudicial delay,” noting (note 27 at 237) : “Although the right to counsel usually means a right to the suspect’s own counsel, provision for substitute counsel may be justified on the ground that the substitute counsel’s presence may eliminate the hazards which render a lineup a critical stage for the presence of the suspect’s own counsel.”

In the instant case there was an in-court identification of the appellant at the guilt stage of the trial by each of the robbery victims. One of the victims, David Watson, had previously identified the appellant at a confrontation in the courtroom at the Western Police Station. The other victim, Sidney Lipman, had previously identified the appellant at a lineup at Central Police Pleadquarters. Both the confrontation at Western and the lineup were after 12 June 1967 but were before the appellant was indicted. Prior to trial the appellant filed a motion to suppress evidence. He moved that “any evidence obtained by the State in consequence of the lineup in which he appeared following his arrest be suppressed as said evidence was obtained in violation of his rights guaranteed by the Sixth Amendment of the United States Constitution.” He alleged as reasons that he had not been advised of his right to private or appointed counsel for representation during the lineup and that he was not represented by counsel thereat. When the cases came up for trial defense counsel brought to the court’s attention that the motion had been filed. The State said that its first witness, Watson, had not attended the lineup so that the motion was not addressed to the case in which he was involved. The court said that it would take Watson’s testimony and “Since it is a court trial, if we find that your allegations in this motion are such as would place it within the purview of United States versus Wade, we will exclude it from the record and from our consideration of the evidence in conformity with your request and motion. So we will defer on the actual ruling on this motion at this time * * As Watson began his testimony defense counsel said to the court that although Watson had not attended a lineup he had confronted the appellant who “was just hustled into the courtroom, and Mr. Watson was brought in moments later.” Watson at that time identified the appellant. Counsel claimed “This certainly would be even worse” than an identification at a lineup. The court said that this would have to be developed on cross-examination and it would have to decide whether it went to the weight or to the motion to suppress at that time. During the course of his testimony, Watson identified the appellant as the man who had robbed him. Timely objection was made and overruled. Thereafter it was brought out by the State that the witness had gone to the Western Police Station at the request of the police. A Lieutenant Etheridge “explained what was going to happen. I sat there in the courtroom, and he said he was going to bring some people in * * * Some people for a hearing, and he said if I recognized anybody, that did anything * * * to me or anyone else, that I should pick him out * * * Well, I was in the courtroom and after approximately five or ten minutes, they brought the defendant in, and that’s when I picked him out.” The appellant was brought in by himself; no other people had been brought in- — -“he was the first case.” Watson was seated in the rear of the courtroom in the company of an Officer Sullivan. “I had orders that if I recognized him, I was to stand up arid say, ‘that’s the man.’ ” When the appellant was brought in “I picked the man out. I stood up and said, ‘Lieutenant, that’s the man.’ ” He had been told that “it was a possibility that they may have had the fellow that hurt me.” Watson was asked by the State, “Did you subsequently give any testimony and make this identification at that time?” He replied, “They had to draw up a case in order for me to press charges and stuff like that at the station, sir.” Defense counsel moved that the in-court identification and the testimony as to the identification at the police station be stricken from the record. The motion was denied.

On appeal the appellant contends that he was denied the right to counsel at the confrontation and that the admissions of the identifications were constitutional error. We think it clear that the appellant was not represented by counsel at the challenged confrontation. We held in Tyler v. State, supra, at 270, that nothing in Wade or Gilbert guarantees the right to counsel at a preliminary hearing whether or not an identification of the accused is made. We said that “The rationale of Wade and Gilbert is not applicable to confrontations at a pretrial judicial hearing presided over * * * by a judicial officer * * The States assumes that the confrontation was during a preliminary hearing. Insofar as it appears from the record before us, we find it clearly evident that it was not. And we think that the confrontation here was such as not to be subject to fair and meaningful objective review later at the trial and, therefore, as we indicated in Tyler, at 272, fell within the strictures of Wade. Thus, since the appellant was not represented by counsel thereat, it was an illegal confrontation. As such, evidence on examination by the State that the witness identified the appellant at the confrontation was not properly admissible, the per se ex-elusionary rule of Gilbert being applicable. And, on the record before us, we are not “able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, supra. We find the admission of the evidence of the identification of the appellant at the confrontation to be prejudicial error and, even though it involves only one indictment, we are compelled on the particular facts of this case to reverse the judgments under both indictments as they were tried together and it cannot be ascertained what consideration the trier of fact gave to the inadmissible evidence in reaching its verdicts of guilty. Thus the question whether the in-court identification by Watson had an independent source is not reached.

By our holding it is not necessary to consider the admissibility of the in-court identification by Lipman, the victim of the other robbery, and the admissibility of the evidence as to his identification of the appellant at the lineup. However, we feel it advisable to discuss these questions, in any event, for the guidance of the lower court. The appellant contends that he was denied his right to counsel and that the identification evidence was improperly admitted.

When Lipman was called by the State, defense counsel brought to the court’s attention that the motion to suppress was involved. The court said it would delay its ruling until “we have seen what developed in the interrogation relative to the lineup.” After Lipman testified as to the facts of the robbery, and made an in-court identification of the appellant as the robber, the State elicited from him that he had attended a lineup at Central Police Station at which he identified the appellant. Officer John Carter testified for the State that he was present at the lineup and that the appellant was advised of his rights “about the lineup.” He said that Lt. Clarence Etheridge advised the appellant that he had a right to an attorney and that he was to appear in a lineup. The appellant “told us that he had changed counsel but that for some reason or another his counsel did not show up at the lineup.” The officer was asked, “Was any time given for him to wait for counsel?” and replied, “Correct, sir.” The officer was asked, “At that time did he express any opinion about waiting for counsel?” and the answer was, “No, he gave a verbal objection. After Mr. Gerald Klauber who was representing someone else, he was asked to act instead of the lawyer whom he stated that he had changed.” Gerald Klauber, an attorney, called by the State, testified that he was present at the lineup as the attorney for another suspect who was in the lineup. He was asked, “Did you subsequently undertake to represent on a temporary basis, the defendant in this case, Mr. Palmer?” He replied, “No, I did not.” He was sure the appellant did not see him at the lineup “because of the way it was set up, the suspects could not see through the screen.” He spoke to the appellant after the lineup and delivered a message for him to a woman, whose name he did not remember, that the appellant was in jail and “wanted somebody to see him.” The appellant then testified on the issue of the lineup. He denied that he was advised that he had the right to an attorney or that one would be appointed for him. While he was held at the Western Police Station before the lineup (the lineup was conducted two days after his arrest) he did not ask for a lawyer “because I didn’t have any funds * * * I wasn’t too versed with the law, sir.” He said he asked for an attorney when he was told he was to appear in a lineup — “I told them that I didn’t have any * * * The officer (Carter) told me just to get in the lineup.” Asked if “during the lineup and prior to the lineup, were you advised of your rights to counsel to represent you, during the course of the lineup ?”, he replied, “I wasn’t advised of anything.” He said Mr. Klauber did not talk with him before the lineup, he did not consider him as his attorney and did not discuss the case with him. Officer Carter, in rebuttal, denied that the appellant had asked, prior to the lineup, that an attorney be appointed for him. The court denied the motion to suppress. It said it chose to believe the officer that the appellant was advised “of his rights” prior to the lineup and that both Watson and Lipman seemed to have a conscious independent identification of the defendant.” But this does not answer the question posed by the admission of the evidence as to the identification of the appellant by Lipman at the lineup. We think it obvious that the court did not find that the appellant was represented by counsel at the lineup and we feel that the record shows that he was not. Even if we were to resolve the question as to substitute counsel left open in Wade by determining that such substitution may, in proper circumstances, be justified, we do not think that the record here shows that provision was made for such substitute counsel as may be contemplated by Wade, especially in the face of the denial by the attorney that he represented the appellant at the lineup. Nor was there any showing, it being apparent that the appellant had no counsel, that the obtaining of counsel would have prejudicially delayed the confrontation, which Wade indicates would be a prerequisite to the substitution of counsel. Although the lower court did not so expressly state, it implied that advising the appellant that he had a right to have counsel present at the lineup was sufficient. However, the right to furnish counsel does not depend upon request, and the mere informing an accused of the right to counsel is not enough. Even if it be assumed that the appellant was properly informed that he had a right to the presence of counsel at the lineup and that if he had no funds to employ counsel, counsel would be appointed for him, the court made no determination that the appellant waived that constitutional right. Carnley v. Cochran, supra, stated that the principles declared in Johnson v. Zerbst, 304 U. S. 458, were equally applicable to asserted waivers of the right to counsel in state criminal proceedings. Johnson v. Zerbst, held that it was the responsibility of the trial court to determine whether there was an intelligent, understanding and competent waiver by the accused of his right to counsel. “While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and proper and appropriate for that determination to appear upon the record.” 304 U. S. 465. The record here does not show a waiver. On the contrary, the testimony of the officer whom the court found to be credible, was that the appellant objected to proceeding with the lineup without waiting for counsel. The police recognized this objection for it was then, believing the testimony of the officer, that they attempted to have Mr. Klauber represent the appellant. As counsel was not present at the lineup and as the presence of counsel was not waived, the lineup was illegal. As the lineup was illegal, the per se exclusionary rule precluded the admission of the evidence with regard to the identification of the appellant at the lineup. The admission of that evidence, therefore, was constitutional error, and we find it to be prejudicial error for, like the admission of the extra-judicial identification of Watson, we are not “able to declare a belief that it was harmless beyond a reasonable doubt.”

As with Watson’s in-court identification, we do not reach the question of the admissibility of Lipman’s in-court identification. As we have seen, it would be admissible if the State established by clear and convincing evidence that it was based upon observations of the suspect other than the lineup identification. The lower court, in overruling the motion to suppress said that Watson and Lipman “seemed to have a conscious independent identification of the defendant.” But it does not appear that it applied the test for exclusion of an in-court identification declared to be proper by Wade, (see note 2 herein). We cannot determine from the record before us whether the in-court identifications had an independent origin sufficient to pei-mit their admission, and were the question necessary for disposition of the instant case, we would remand for further proceedings with regard thereto, as that inquiry is most properly made in the lower court.

The appellant also contends that the circumstances of his confrontation by Watson in the Western Police Station were such as to deny him due process of law. As we have reversed the judgment to which that matter was pertinent for other reasons, we do not consider that contention.

As to each of indictments Nos. 33 and 35:

Judgment reversed and case remanded for a new trial.

      . The Court indicated that there may be an “intelligent waiver” of the right to counsel. Wade at 337, citing Carnley v. Cochran, 369 U. S. 506.

      . In Wade, at 341, the Court stated the test:
      “We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U. S. 471, 488, ‘Whether, granting establishment of the primary illegalitjr, the evidence to which instant-objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt 231 (1959). See also Hoffa v. United States, 385 U. S. 293, 309. Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.”

      . In Gilbert three eyewitnesses who had viewed the illegal lineup made in-court identifications at the guilt stage. Another witness, the manager of an apartment house in which incriminating evidence was found and in which the accused allegedly resided identified the accused in the courtroom and testified in substance as to her prior lineup identification at the guilt stage. At the penalty stage, eight witnesses testified they identified the accused at the lineup with regard to crimes other than the ones for which he was then on trial. It appears that there were separate guilt and penalty stages of the trial before the same jury, which rendered a guilty verdict and imposed the death penalty.
      In Wade there were only in-court identifications at the. trial. The admissibility of the lineup identification itself was not involved.

      . The rationale of Wade with regard to the admission of the in-court identification after illegal lineup was that a per se rule of exclusion of the courtroom identification would be unjustified and that a rule limited solely to the exclusion of testimony concerning the lineup itself would render the right to counsel an empty one. Wade at 340.
      The rationale of Gilbert with regard to the admission of evidence as to the identification at the illegal lineup itself was that such testimony was “the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’ The State is therefore not entitled to show that testimony had an independent source.” Gilbert at 373-373, citing Wong Sun v. United States, 371 U. S. 471.

      . We considered Wade at length in Tyler v. State, 5 Md. App. 365. We thought it evident “that Wade does not hold that all pretrial confrontations between the accused and the victim or other identifying witnesses are thereby deemed to be critical stages of the criminal prosecution. In our opinion, Wade indicates that only those pretrial confrontations that are not subject to fair and meaningful objective review later at the trial fall within its strictures, so that where the circumstances of the confrontation can be fully developed at the trial by cross-examination of the State’s witnesses, or by presentation of witnesses on behalf of the defendant, the right to counsel does not attach.” at 273.

      . We think that if an accused, understanding his right to counsel, is shown to have the means to employ counsel, his failure to obtain counsel after being given the opportunity to do so would be a valid waiver.

        . See the discussion of the admissibility of prior extra-judicial identifications in Gilbert, note 3, page 372.

      . The Lipman robbery was committed on 17 November 1967 and the Watson robbery on 22 November 1967. See Gordon v. State, 5 Md. App. 291; Gorski v. State, 1 Md. App. 200.

      . We cannot find from the record that the evidence of the lineup identification was received only on the issue of admissibility of the in-court identification. We think it was admitted on the issue of innocence or guilt.


text:
    HERMAN MANFORD FIX, JR. v. STATE OF MARYLAND
    [No. 172,
    September Term, 1968.]

      Decided January 22, 1969.

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

      E. Harrison Stone for appellant.

      Bernard L. Silbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green, Jr., State’s Attorney for Baltimore County, L. Robert Evans, Deputy State's Attorney for Baltimore County, and Robert A. DiCicco, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

William H. Trescott, Jr., was murdered on 4 February 1965. The appellant was accused of committing the crime and on 15 May 1967 three indictments were returned against him by the Grand Jury for Baltimore County. Indictment No. 32363 charged him with murder in the first degree (1st count), murder in the second degree (2nd count), manslaughter (3rd count), and assault and battery (4th count). Indictments Nos. 32364 and 32365 related to carrying concealed weapons. The case came on for trial on 27 March 1968 in the Circuit Court for Baltimore County. The appellant pleaded guilty to murder in the second degree charged in the second count of indictment No. 32363. The appellant was examined by the court with respect to the plea, his counsel and the Deputy State’s Attorney were heard thereon, an agreed statement of facts was presented to the court and the appellant testified. The docket entries read: “Traverser submits under plea of guilty to the second count of the indictment (murder in the second degree). * * * Case submitted on statement of facts. * * * Verdict: guilty to the second count as confessed (guilty of murder in the second degree).” The appellant was sentenced to 18 years to run consecutively with a sentence to be served which was imposed in Virginia. Stets were entered to the 1st, 3rd and 4th counts of indictment No. 32363 and to indictments Nos. 32364 and 32365 as authorized by Md. Rule 718.

The appellant appealed. He attacks his plea of guilty and claims that he was denied a speedy trial. But if the plea of guilty was freely and intelligently made, the right to a speedy trial, if such was denied the appellant, was waived thereby as such a plea is a conviction of the highest order and waives all procedural objections, constitutional or otherwise, and nom-jur risdictional defects. Ogle v. Warden, 236 Md. 425. Even constitutional rights may be so waived, including that to a speedy trial. Cohen v. State, 235 Md. 62, certiorari denied, 379 U. S. & 844; Goetzke v. Warden, 1 Md. App. 3. A plea of-guilty will' not be reviewed on appeal if it is properly entered; properly entered has been said to mean that the plea has been made freely, voluntarily and with full understanding of its nature and effect and of the facts upon which it is founded. Lowe v. State, 111 Md. 1. See State v. Darling, 130 Md. 251. So the Court of Appeals said in Cohen v. State, supra, at 69: “Maryland has long recognized that when a person pleads guilty, the judgment entered on the plea cannot ordinarily be reviewed on appeal if the plea was made freely and voluntarily with full understanding of its nature and effect, and the judgment properly entered.” But there may be an appellate review to determine if the voluntary nature of a plea of guilty was clearly established prior to the lower court’s acceptance of it and if it was unconditional. Wayne v. State, 4 Md. App. 424.

The appellant argues that his plea of guilty was involuntary “in that it was induced by prior erroneous rulings by the trial court relative to crucial evidentiary matters.” He urges that the judge below erred in denying, upon hearing prior to trial, his motion to suppress all testimony with respect to weapons seized from him at the time of his arrest and to suppress an oral confession made by him. He asserts that because of these alleged erroneous rulings he had “to decide between standing firm on his constitutional rights, which he feels were violated, or entering into an arrangement with the State whereby he could receive a maximum sentence of eighteen years.” He maintains that “in a society which presupposes innocence, the accused should not have to make such a choice.”

The contention of the appellant must fail because the record is devoid of any - evidence to support his allegation that he pleaded guilty because of the rulings on his motions. Even if we would find that the rulings were erroneous as he claims, we could not, on the record before us, determine that the guilty plea was induced' or compelled by the rulings or that he, in fact, made the choice for the reason he now asserts he was obliged to make it. On the contrary the record on its face clearly established, we think, that the plea was made freely and voluntarily with full understanding of its nature and effect, that it was unconditional and that the judgment was properly entered. In the circumstances we cannot assume, as the appellant asks us to do, that the plea was otherwise made.

When the case came up for trial the court elicited from the appellant that he was 26 years of age, had been graduated from high school and had completed a year of “electronics school.” The court related to him the charges in the four counts of the murder indictment, ascertained from him that he was represented by the two attorneys then present, William F. Mosner and J. Earle Plumhoff, and asked if he was ready to plead. The transcript of the proceedings then reads :

“MR. MOSNER: Your Honor, we wish to plead only to the second count, and that would be a plea of guilty.
THE COURT: Is that acceptable to the State ?
MR. EVANS: Yes, sir. If the Court accepts that plea the State will stet Counts 1, 3, and 4 of that indictment and all counts of Indictments 32364 and 32365.
THE COURT: Have you made your client aware of the significance of a plea of guilty, Mr. Mosner ?
MR. MOSNER: Yes, your Honor, we have. We have advised our client that in our opinion he cannot be sentenced under the present provisions of the law, but, would be sentenced under the provisions that applied at the time of this offense, which would be a maximum sentence of eighteen years under the plea of guilty to murder in the second degree. * * *
THE COURT: * * *. Do you understand what a plea of guilty means, Mr. Fix?
HERMAN M. FIX, JR: Yes, sir, your Honor, I do.
THE COURT: Did anybody make you any promises, or threats, or deals to persuade you to plead guilty ?
HERMAN M. FIX, JR: No, sir, they did not.
THE COURT: Do you realize that without further ado I can forthwith impose a sentence up to eighteen years ?
HERMAN M. FIX, JR: Yes, sir, I do.
THE COURT: You’re now in the County Jail?
HERMAN M. FIX, JR: Yes, sir, I am.
THE'COURT: How long have you been there?
HERMAN M. FIX, JR: I’ve been incarcerated since October 2, 1967.
THE COURT:' Approximately when were — were you appointed, Mr; Mosner ?
MR. MOSNER: Yes, your Honor.
THE COURT: Approximately when were you two gentlemen appointed ?
MR. MOSNER: Very shortly after that, your Honor, Judge Jenifer appointed us.
MR. PRUMHOFF: October 6th I have.
THE COURT: Have you had ample time to thresh all this out with your client ?
MR. MOSNER.: Your Honor, I believe we have. We have had pretrial motions heard by Judge Turn-bull and ruled on, we have discussed the case time and again with Mr. Fix. I feel that he is an intelligent person who fully understands the significance of the plea and I do feel that it is made of. his own volition.
THE COURT: It’s true it’s a free and voluntary plea on your part, Mr. Fix ?
HERMAN M. FIX, JR: Yes, sir, it is.
THE COURT: Are you satisfied with your court-
¡ . appointed counsel ?
HERMAN M. FIX, JR: Yes, sir, I am.
THE COURT: All right, be seated. Tell me what this case — how did it develop ?
MR.'EVANS: (Deputy State’s Attorney) Well, first ,of all, before we get into that, your Honor, I ■. don’t want to — I want the record clearly to show that this is a matter of plea bargaining as approved by the American Bar Association. Now, when Fix has said that nobody has made any deals, the fact of the matter is that the State has agreed with defense counsel that in the event of a plea on the second count the State will stet the balance of these counts. This seems fairly obvious from the activity here this morning.
THE COURT: Certainly.
MR. EVANS: And I find nothing wrong with it, but I don’t want the record to—
THE COURT: I don’t either. As long as it’s free and voluntary on this one count, and that’s all I’m concerned with, provided, of course, the gentleman has had competent advice from competent lawyers, and I’m persuaded that he’s gotten that, certainly in this case. I have a high regard, of course, for both counsel. What are the facts ?”

The facts of the crime were then related by the State. The deceased, a manager of a package goods liquor store, was shot in the back and chest by the appellant during the course of a robbery and subsequently died. The appellant was apprehended five days later in Virginia. He had held up a filling station outside of Norfolk, Virginia, fled in an automobile, was pursued by the police and captured. A .22 caliber pistol, proved to be the murder weapon by ballistics comparison with the bullet extracted from the body of the victim, and a P-38 German Army pistol identified as having been stolen from the deceased and bullets for it were seized from him. He had pistol whipped the victim of the Virginia robbery but had not killed him. The appellant testified. He said his father retired from the United States Army with the rank of major and lived with his mother in Florida. An elder brother, employed by a railroad, lived in Miami. Another brother, a medical doctor, lived in Georgia as did a sister who was married to an electronics engineer. He was graduated from Crisp County High School in Cordele, Georgia in 1960. He was in the navy for 4 years and 1 month, 3 years on an aircraft carrier and one year in electronics training school. He was discharged in September 1964. He obtained employment with Minneapolis Honeywell Electronics Corporation “because of my electronics background and I already had a top security classification from the United States Government.” He worked 3 or 4 months and was released when “they cut the employment down.” His goal was to be with a law-enforcement agency and he applied for such a position in Florida but was not accepted because of defective eyesight. He went to Washington, D. C. seeking employment and applied for a treasury job through civil service. He assumed the application was still being processed. He also applied for a job with the C. & P. Telephone Company but was not accepted because he then weighed 270 pounds (at the time of trial he weighed 200 pounds). Asked why he got involved in the robberies he said:

“I guess, with all sincerity, I’d have to say I was both financially and emotionally unstable at the time, you know, I was depressed, and it was foolish and, of course, I realize that, but, it’s hardly any excuse or any justification for the crime, but, that was primarily the reason, I would say, in that particular time.”

He denied that he went into the liquor store in Baltimore County with the intention of doing anyone bodily harm:

“No. Actually, I was pretty frightened, and I went into the store, and I did try to rob the man of what was in the register at the time, and he run to the door, told me nobody was leaving. First he picked a revolver up and I took the revolver and stuck it in my coat pocket so there wouldn’t be any trouble. Then he run to the door. * * * He spread his arms so I couldn’t get out of the door, said no one was leaving, and I said, well, if that’s the way it is, I’m going to leave, just get out before there’s any trouble, and I put my arms around, you know, to try to move him, and when I did, well, we begin to scuffle, and my arm hit the binder for the door, you know, and that was the one had the pistol in it, and the pistol went off, and, as he started to slump I picked him up and, you know, tried to carry him and the gun went off again; it was too late then.”

He told about the Virginia robbery — he went into the filling station, asked the man for his money, hit him lightly at the nape of the neck and left the scene. He received a sentence of 19 years for that crime. He said he got the .22 caliber pistol, a Beretta, while overseas in the navy. The German pistol was the “property of the man robbed in Baltimore County.” Asked if anything happened in the navy “that would have influenced you with regard to taking up robbery within a short while after you got out,” he said:

“No, not necessarily. Of course, you meet all types of people in the service, no different from anywhere else, except that they are, you know, the majority are male, of course, and being on shipboard you hear one thing and another, but, I don’t think it made me — it might have been something that would, related me back to thinking the way I did, but, I couldn’t pinpoint it.

Asked if he had ever received psychiatric treatment, he replied :

“Well, I’ve done some studies myself in psychology and psychiatry, and Dr. Harry Brick from the Virginia State Penitentiary is a neuropsychiatrist and I’ve studied through him also — he’s deceased at this time — • but, they have, as far as evaluation, they evaluate you when you go in.”

He was evaluated mentally competent by the Virginia authorities.

It is true that when the appellant came up for trial he had a choice. He could plead not guilty and go to trial faced with the possibility that he would be convicted of murder in the first degree with the resultant consequences or he could plead guilty to the lesser crime of murder in the second degree, which apparently the State had indicated it would not oppose, with the hope that the court would accept such a plea, thus limiting his sentence to a maximum of 18 years. He selected the latter. That the State indicated it would stet the remaining charges, if the court consented, did not make his plea conditional or involuntary. He was represented by highly competent and experienced counsel who advised him of the nature and effect of the plea. We believe it apparent that he had a full understanding of its,nature and effect and of the facts upon which it was founded. Upon inquiry he told the court he understood what a plea of guilty meant and stated that no one made him any promises or threats or deals which persuaded him. to plead guilty. He did not dispute the statement made by his counsel to the court that “we have discussed the case time and time again with Mr. Fix. I feel that he is an intelligent person who fully understands the significance of the plea and I do feel that it is made of his own volition.” When asked by the court immediately following this statement by his counsel whether it was true that “it’s a free and voluntary plea on your part, Mr. Fix?” he said, “Yes, sir, it is,” and that he was satisfied with his counsel. Considering the appellant’s statements to the court, the remarks of his counsel and the totality of the evidence before the court, we cannot say that the guilty plea was other than freely and understandingly made. The appellant had the opportunity to consider the rulings which he now challenges and claims induced his plea for almost a month and a half before he pleaded guilty. He cannot now, in the circumstances extant on the record before us, effectively claim they rendered his plea involuntary. We find no error in the acceptance of the guilty plea by the lower court.

As we have found that the plea of guilty was properly accepted, the appellant is deemed to have waived the right to a speedy trial (if such was denied him). And, of course, error in the denial of the motions to suppress the evidence (if error there was) is meaningless since the guilty plea made unnecessary a trial or production of evidence to support the indictment. Gopshes v. State, 1 Md. App. 396.

Judgni/ent affirmed.

      . Md. Rule 724 provides: “A defendant may enter a plea of not guilty to one degree and a plea of guilty to another degree of an offense, which, by law, may be divided into degrees of guilt.” Md. Code, Art. 37, § 413 provides, in relevant part: “And the jury before whom any person indicted for murder shall be tried shall if they find such person guilty thereof ascertain in their verdict whether it be murder in the first or second degree; but if such person-, lie, convicted by confession, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly.” It appears that both the procedure ■ authorized by the rule and that prescribed by the statute were in substance fol-' lowed here. / (

      . Eighteen years was the maximum sentence authorized for second degree murder by Md. Code, Art. 27, § 414 in effect at the time of the commission of the crime. Ch. 339, § 1, Acts 1966 increased the maximum sentence to 30 years but' by § 2 thereof it does not apply to convictions for murders committed before 1 Juné 1966.

      . The judge presiding at the hearing on the motions to suppress disqualified himself from presiding at the trial. The guilty plea was accepted by another judge.

      . In the penalty stage of the proceedings the court noted, “If this case were submitted to the court on the facts that have been announced it would seem crystal clear that what this really is is a first degree murder case which would call for a life sentence.”

        . The .22 caliber pistol and the P-38 pistol were seized from the appellant when he was arrested in Virginia. The appellant moved that the weapons be produced for inspection and that they be suppressed as obtained by an unreasonable search and seizure. The State disclosed that the weapons had been destroyed by the Virginia authorities after the appellant’s conviction in that State. The appellant' moved to suppress all testimony with regard to the weapons. - •


text:
    RONALD JOSEPH BOWEN v. STATE OF MARYLAND
    [No. 185,
    September Term, 1968.]

      Decided January 23, 1969.

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

      Ronald T. Osborne for appellant.

      H. Edgar Lents, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Peter D. Ward, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

Two questions are presented on this appeal from the appellant’s convictions at a court trial in the Criminal Court of Baltimore of grand larceny and resisting arrest and concurrent sentences of 3 years and 6 months respectively. The first question relates to the admissibility of in-court identifications and the second is with regard to the alleged consideration by the trial court of the appellant’s failure to testify in its determination of his guilt. We find no prejudicial error in the matters raised by the questions.

I

At the trial two eyewitnesses to the larceny identified the appellant as the thief. The appellant objected to the admission of the identifications on the ground that there had been a pretrial confrontation of the appellant by the witnesses which was illegal because it had been conducted without the presence of counsel to represent him and after the decision in Stovall v. Denno, 388 U. S. 293. He asserted at trial and contends on appeal that the exclusionary rules enunciated in United States v. Wade, 388 U. S. 218, and in Gilbert v. State of California, 388 U. S. 263, precluded the admission of the in-court identifications as the State did not establish that they had a source independent of such illegal confrontation. But the confrontation of which the appellant complains was at a preliminary hearing and our holdings in Tyler v. State, 5 Md. App. 265, are dispositive of the point. We held, at 270 that “nothing in Wade or Gilbert guarantees the right to counsel at a preliminary hearing whether or not an identification of the accused is made.” We said, at 272:

“We think it evident that Wade does not hold that all pretrial confrontations between the accused and the victim or other identifying witnesses are thereby deemed to be critical stages of the criminal prosecution. In our opinion, Wade indicates that only those pretrial confrontations that are not subject to fair and meaningful objective review later at the trial fall within its strictures, so that where the circumstances of the confrontation can be fully developed at the trial by cross-examination of the State’s witnesses, or by presentation of witnesses on behalf of the defendant, the right to counsel does not attach. Specifically, we hold that the rationale of Wade and Gilbert is not applicable to confrontations at a public pretrial judicial hearing presided over, * * *, by a judicial officer * *

See Palmer v. State, 5 Md. App. 691.

On appeal the appellant appears to limit his contention to the argument that the in-court identification should have been excluded under the rules of Wade and Gilbert. Independent -of any right to counsel claim, a confrontation may be “so unnecessarily suggestive and conducive to irreparable- mistaken identification” as to be a denial of due process of law. Stovall v. Denno, supra, at 296. Although the appellant in his brief suggests that the circumstances preceding the in-court identifications tainted the in-court identifications he does not specifically contend that he was denied due process of law thereby, applying the circumstances alleged only in support of his claim that the State did not establish the independent source of the in-court identifications as required by Wade. In any event we do not think that the circumstances as disclosed by the record here were so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law. The lower court did not so find, and we cannot say, on the evidence before it, that its judgment was clearly erroneous. Md, Rule, 1086; Gunn v. State, 4 Md. App. 379. We note that the lack of positiveness or failure of witnesses to identify an accused from photographs or upon a legal confrontation prior to an in-court identification go to the weight of the in-court identification and not to its admissibility. Barnes v. State, 5 Md. App. 144; Tucker v. State, 5 Md. App. 32; Baldwin v. State, 5 Md. App. 22; Brown v. State, 4 Md. App. 612; Carroll v. State, 3 Md. App. 50; Crosby v. State, 2 Md. App. 578; Logan v. State, 1 Md. App. 213. Rath v. State, 3 Md. App. 721 is factually distinguishable from the instant case.

The appellant also complains that he did not have the benefit of a pretrial lineup. We know of no constitutional provision bestowing upon an accused the right to appear in a lineup. See Fogg v. Commonwealth, 159 S. E. 2d 616 (Va.) holding that there was no principle of law under which an accused was constitutionally entitled to be placed in a lineup.

We find no prejudicial error in the admission of the challenged in-court identifications.

II

After the trial court rendered its verdicts of guilty, it said:

“Now, Mr. Bowen, had you taken the witness stand I might have been able to have elicited some information from you that might have persuaded me to have acquitted you on No. 368 (the larceny conviction) but since you didn’t elect to do that, it was impossible for me to obtain certain information that I was most interested in, and, to wit, whether or not you had your cast in your eye on the 19th of December, what the shade of your hair was on the 19th of December, so, since you didn’t elect to submit to the examination of the Court counsel, I would have to take the position that your condition was more or less the same on that date as it is today.”

Relying on Griffin v. State of California, 380 U. S. 609, the appellant urges that this comment compels reversal as making “quite clear that (the trial court) was greatly influenced in reaching an obviously difficult decision by the failure of the defendant to take the stand and testify in his own behalf.” However, in Griffin, the Court took the statement in Malloy v. Hogan, 378 U. S. 1 — “the same standards must determine whether an accused’s silence in either a federal or state proceeding is justified”, at 11 — in its literal sense, holding that “* * * the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosectttion on the accused’s silence or instructions by the court that such silence is evidence of guilt.” 380 U. S. 615. In Benton v. State, 1 Md. App. 647, we found no error in the court’s instructions to the jury that they were not to attach any significance or inference of guilt from the defendant’s failure to take the witness stand because every individual has an absolute constitutional right not to testify, and no inference of guilt can be presumed because he chose not to take the stand. We think it clear that the self-incrimination clause prohibits an inference of the guilt of an accused by reason of his failure to testify. Griffin v. California, supra, at 613-614. But we do not construe the challenged comments of the trial court here as showing that it inferred the appellant was guilty from such failure. The court merely said that it might have been able to acquit the appellant had certain evidence been presented by him. Lacking such evidence, the evidence before the court was sufficient to convince the court, as the trier of fact, of the appellant’s guilt beyond a reasonable doubt. The silence of an accused does not protect him from the probative force of the evidence against him. Boswell v. State, 5 Md. App. 571. We are not persuaded from the comments of the trial court that it determined the guilt of the appellant by reason of his failure to testify or that it improperly considered that failure in reaching its verdicts. We find no prejudicial error.

Judgments affirmed.

      . In the instant case, as in Wade, there was no question of the admissibility of testimony of identification at the confrontation itself. The identifications at the confrontation were not adduced by the State but brought out by the defense in support of its objections to the in-court identifications. Gilbert fashioned the additional rule that evidence of an identification at an illegal confrontation offered by the prosecution is per se to be excluded.

      . On the other hand, the appearance of an accused in a lineup without his consent is not constitutionally prohibited. Thompson v. State, 4 Md. App. 31. See United States v. Hammond, No. 28308, United States District Court for the District of Maryland, where an order was issued under date of 13 June 1968 compelling the accused to appear in a lineup.

      . In Benton the appellant attacked the advisory nature of the instructions. Certiorari denied, Court of Appeals of Maryland, 7 December 1967; certiorari granted, Supreme Court of the United States, No. 201, 17 June 1968, on the unrelated question of double jeopardy. The case was argued and then restored to the docket for reargument on 24 March 1969, limited to the question, not specified in the original writ, whether “the concurrent sentence doctrine” has continuing validity in view of decisions subsequent to the cases enunciating and affirming the doctrine.


author: Morton, J.,

text:
    WILLIAM NORMAN RICHARDSON v. STATE OF MARYLAND
    [No. 109,
    September Term, 1968.]

      Decided January 29, 1969.

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

      Myles R. Bisenstein for appellant.

      Donald Needle, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Thomas N. Biddison, Jr., Assistant Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and David R. Baton, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant, William Norman Richardson, was convicted of breaking into a dress shop and stealing merchandise of a value in excess of five ($5.00) dollars by Judge William J. O’Donnell, sitting in the Criminal Court of Baltimore without a jury, and sentenced to serve six years in prison.

' The principal State witness testified that on Sunday, May 7, 1967, at approximately 10:30 a.m., while looking out the window of her third floor apartment, which was across the alley from a dress shop in the four-hundred block of Charles Street in Baltimore City, she heard a noise and observed a man running from the direction of the rear of the building in which the dress shop was located. Immediately thereafter she saw him drive a car to the rear of the building, alight therefrom, and proceed toward the building. Shortly thereafter, she observed him and another individual, whom she identified as Richardson, come from the rear of the building carrying large bundles enclosed in what appeared to be sheets, enter the automobile and depart. She immediately contacted the police and gave them a detailed description of the automobile and the license number which she had recorded, as well as a description of the individuals. The police immediately entered the dress shop, found that it had been broken into and that merchandise of a retail value approximating six thousand ($6,000) dollars had been taken. When it was ascertained that the license number was issued for an automobile owned by Richardson’s brother-in-lav/ which automobile was in Richardson’s possession at the time of the breaking and entering, a warrant was obtained for Richardson’s arrest. Upon learning that the police were seeking him, Richardson went to the police station, admitted having the automobile at the time of the theft but denied participating therein, stating that he was with a woman companion from 8:00 p.m. the night before until 11:00 a.m. on the Sunday that the crime was committed.

In this appeal, it is contended that Richardson was denied his constitutional right to counsel, thus rendering inadmissible inculpatory statements given by him to the police and, secondly, that the evidence was legally insufficient to sustain his conviction. We are of the opinion that each contention is without merit.

During the course of the police officer’s testimony in the trial below the following colloquy occurred between the court and Richardson’s counsel:

CROSS-EXAMINATION

BY MR. EISENSTEIN:

Q Officer Fosler, you stated that after warning the defendant, Mr. Richardson, of his rights, you had a conversation with him, is that correct ?
A That is correct.
Q And will you tell us what he said to you, if anything ?
THE COURT: Is there any cross-examination of the officer—
MR. EISENSTEIN: No, sir.
THE COURT: — on the admissibility ?
MR. EISENSTEIN: No.
THE COURT: It is conceded, then, for the record, that there were no threats or violence or other coercion—
MR. EISENSTEIN: That is correct, sir.
THE DEFENDANT: Yes, sir.
THE COURT: Is that correct, Mr. Richardson ?

You make no contention that whatever you told the officer was said contrary to the law, or what was said was involuntary, is that right?

THE DEFENDANT: Yes, sir.
THE COURT: All right.

In view of the foregoing, it is apparent that both Richardson and his counsel clearly and unequivocally signified that the appropriate constitutional warnings had been issued and that the statements were freely and voluntarily given. To now contend that the admission of the statements violates the mandate of Miranda v. Arizona, 384 U. S. 436, is sheer frivolity. It is true that Miranda requires that constitutional warnings be given to an accused as a prerequisite to the use of his in-custody statement and that the giving of such warnings will not be presumed from a silent record. But here, it is clear from the record that Richardson, while in the protective atmosphere of a concerned trial judge, affirmatively demonstrated that “he knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel * * *” as required under the terms of Miranda. We see no violation of his constitutional rights by the admission into evidence of his statements concerning his acknowledged possession of the car which was observed at the scene of the crime.

With respect to his contention that the evidence was legally insufficient to sustain his conviction, “the test is whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.” Williams v. State, 5 Md. App. 450. Richardson argues that the State merely established his presence at the scene of the crime and that presence alone, although an important factor, is not legally sufficient to establish guilt. Coleman v. State, 4 Md. App. 386, 390; Shifflett v. State, 3 Md. App. 550, 553; Allen v. State, 2 Md. App. 298, 300. Here, however, the State has established much more than Richardson’s presence at the scene of the crime for the State witness observed him actually carrying bundles from the rear of the building which housed the dress shop. Although the witness was unable to observe the appellant actually emerging from the doorway of the building because of the overhang of a roof it is perfectly clear that the trial judge could draw a rational inference from all the evidence that Richardson, beyond any reasonable doubt, was a principal participant in the breaking and entering and stealing from the dress shop. The weight of the evidence and the credibility of the witnesses was for the determination of the trial judge. McRae v. State, 3 Md. App. 388, 393; Anderson v. State, 3 Md. App. 362, 369; Lucas v. State, 2 Md. App. 590, 593. He was not required to believe the exculpatory testimony of the appellant. Logan v. State, 1 Md. App. 213. We think it is clear that the evidence was legally sufficient to sustain the conviction.

Judgment affirmed.