text:
    WILLIAM LEIGHTON McDONOUGH v. DIRECTOR, PATUXENT INSTITUTION
    [No. 47,
    September Term, 1967.]

      Decided April 4, 1968.

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

Applicant was convicted of five separate charges of assault and battery, and one charge each of malicious destruction of property, resisting arrest, and disorderly conduct by a trial magistrate in Baltimore County on April 6, 1959. From these convictions, applicant, with aid of counsel, filed an order for appeal to the “Criminal Court of Baltimore County.” On August 5, 1960, before a jury, with Judge John Grason Turnbull presiding, the jury returned verdicts of guilty in all eight cases. Applicant was sentenced to two years in the Maryland House of Correction on one of the assault charges, sentence being suspended on all other charges. Subsequently, on January 17, 1962, he was found to be a defective delinquent and committed to Patuxent Institution pursuant to Section 5 of Article 31B of the Maryland Code. He applied for leave to appeal from this determination, but his application was denied by the Court of Appeals on July 25, 1962. See McDonough v. Director, 229 Md. 626.

On November 18, 1964, applicant filed a petition for a redetermination as to whether he was still a defective delinquent. A hearing was held on June 30, 1965 and on February 14, 1967, he was again found to be a defective delinquent by Judge Walter M. Jenifer in the Circuit Court for Baltimore County, sitting without a jury. After he was recommitted to Patuxent Institution, he filed an application for leave to appeal and a memorandum in support thereof. His court-appointed attorney filed a supplemental brief on his behalf. A transcript of the redetermination proceedings before Judge Jenifer has been obtained and a copy made available to the applicant.

The applicant raises 135 contentions in his application for leave to appeal, most of which relate, in one way or another, to the sufficiency of the evidence adduced at his original and re-determination hearings to support his adjudication and confinement as a defective delinquent. We do not, of course, consider on this application the sufficiency of the evidence offered to support his original confinement as a defective delinquent, that issue having been foreclosed in McDonough v. Director, supra. The redetermination hearing now in question was held before the court sitting without a jury, so that the judgment of the lower court will not be set aside on the evidence unless clearly erroneous. See Johns v. Director, 239 Md. 411. A review of the evidence clearly indicates that the lower court’s finding that applicant was still a defective delinquent was not clearly erroneous.

Applicant advances a number of contentions which were not raised at the redetermination hearing and, accordingly, they are not properly before us for consideration. See Wise v. Director, 1 Md. App. 418.

Numerous of the contentions raised by applicant in his present application were previously raised at the time of his original hearing to determine his status as a defective delinquent and were adjudicated against him by the lower court and ultimately by the Court of Appeals in McDonough v. Director, supra. And many of the contentions now sought to be raised have been decided adversely to applicant in Director v. Daniels, supra. Other contentions advanced by the applicant are such as defy intelligent grouping and some do not clearly appear to have been raised below. Applicant contends, for example, that the re-determination hearing judge was senile, that his counsel at the hearing was incompetent, that the examining psychiatrists at Patuxent Institution were not licensed physicians in Maryland, that he did not have his counsel present during the examination conducted by Patuxent doctors, that the doctors were prejudiced against him, that he is innocent of the criminal charges forming the foundation of his commitment to Patuxent Institution and has new evidence that he didn’t commit these crimes, that he was entrapped, that he was denied a speedy trial, that he was unlawfully placed in solitary confinement at the Institution, that he was subjected to cruel and unusual punishment, that evidence used against him was suppressed, and that he was unable to effectively utilize the discovery procedures available to him under, the Maryland Rules of Procedure. On the record before us, we find no merit to any of these contentions. Several contentions advanced by applicant merit special attention, i.e.:

1. That the procedure below was defective because the Patuxent Institution staff failed to file a report with the court.
2. That applicant was improperly committed to Patuxent Institution because his original commitment thereto was based on convictions before the trial magistrate court which were subsequently affirmed by the circuit court.

Applicant submits he has been denied equal protection under the Fourteenth Amendment, not having been provided with a complete report as to the facts which led the State to believe he is a defective delinquent. However, applicant concedes that Article 31B, Section 10, entitled “Petition for Review,” is silent as to whether a report must be filed in a redetermination proceeding.

The testimony provided by Dr. Croce, Dr. Manne and the applicant, in the lower court hearing, is in agreement that applicant refused to cooperate in allowing the staff at the Institution to examine him. It is clear that a person cannot complain of an action, or inaction, of others when he is the cause of the delay that ensues. State v. Musgrove, 241 Md. 521; State v. Murdock, 235 Md. 116; Harris v. State, 194 Md. 288. We fully concur with Judge Jenifer’s thorough memorandum opinion accompanying his order, in which he states:

“If, however, the filing of such interval note was precluded by the action, or inaction, of the Petitioner who is now seeking relief, he should not be heard to successfully complain that such interval note was not filed. The Court is of the opinion that the absence of such an interval note does not vitiate the redetermination hearing, especially in view of the fact that the complete files at Patuxent were subject to examination by the Petitioner and his counsel, and that all civil discovery procedures were available to them.”

Applicant urges that he was improperly referred and committed to Patuxent Institution, because his conviction was the result of an appeal taken from a trial magistrate. This allegation necessitates a construction of Section 15 of Article 31B, which provides an exception to a case originating in the court of a magistrate, whereby a party may be brought within the purview of Article 3IB. It is applied when “* * * by reason of a request for a jury trial or for other cause the case shall be heard and adjudicated in a regular criminal court.” Here, applicant’s cases were tried de novo before a jury requested by applicant and were “heard and adjudicated in a regular criminal court.” The case of Height v. State, 225 Md. 251, is pertinent in its construction of Section 15. The court there noted that the language employed was “broad,” “plain,” and “inclusive” so as “to insure that no person’s rights would be affected by the provisions of the Act, unless that person was convicted and sentenced—not by a trial magistrate or justice of the peace —but in ‘a regular criminal court’ of this State, * *

That the Circuit Court for Baltimore County was “a regular criminal court of this State,” at the time of applicant’s conviction on August 5, 1960 is, of course, entirely clear. Thereafter, the Judge (Turnbull, J.), after receiving a report from the court phychiatrist, exercised his prerogative under the provisions of Section 6 (b) of Article 31B to have applicant examined to determine if he was a defective delinquent.

We again observe that it is not improper to admit in evidence statements and opinions of staff members of Patuxent Institution because they were partly based on reports of others. See Gray v. Director, 245 Md. 80; Murel v. Director, 240 Md. 258. Furthermore, there is no valid constitutional objection under the circumstances of this case to the alleged lack of cross-examination or confrontation. Director v. Daniels, supra.

The allegation that a person must be proved “beyond a reasonable doubt” to be a defective delinquent is also void of merit. The entire proceeding is civil in nature, and thus the standard applied is “a fair preponderance of the evidence.” Sas v. Maryland, 334 F. 2d 506 (4th Cir.).

Application denied.

      . A decision on applicant’s petition for redetermination was delayed with his concurrence pending the decision in the related case of Director v. Daniels, 243 Md. 16. That case was decided by the Court of Appeals on June 3, 1966.

      . See Crews v. Director, 245 Md. 174.

      . See Blann v. Director, 235 Md. 661.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    WILLIAM ROLLINS HOLT a/k/a HERBERT LEE MAYES v. STATE OF MARYLAND
    [No. 130,
    September Term, 1967.]

      Decided April 4, 1968.

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

      jPaul J. Cockrell for appellant.

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

delivered the opinion of the Court.

William Rollins Holt, also known as Herbert Lee Mayes, the. appellant, was convicted of murder in the first degree in a jury trial in the Criminal Court of Baltimore. He was sentenced to be confined for the term of his natural life. The conviction is based upon Section 410 of Article 27 of Md. Code which provides that murder committed in the perpetration of a robbery or an attempted robbery shall be murder in the first degree. The facts are set out fully in the companion case in the Court of Appeals of Maryland, Cunningham v. State, 247 Md. 404, 231 A. 2d 501; the evidence produced in the present case being substantially the same as that produced in the Cunningham case. Such facts as are necessary for this opinion are set out hereinafter.

Holt’s first contention is that he was denied due process of law due to a “violation of the sanctity of the jury and the jury room.” There is nothing in the record to support the appellant’s contention and the matter was not presented to or ruled upon by the trial judge; therefore, under Maryland Rule 1085 there is nothing before us to review. We will discuss the matter, however, in view of the fact that the issue may be raised in a collateral attack on the judgment. It seems that an alternate juror was excused by the court and counsel, without Holt’s personal knowledge, after the jury had been sworn because the juror informed the trial judge that he had personal knowledge concerning the case. He cites the case of Young v. Lynch, 194 Md. 68, 69 A. 2d 787 supposedly for the proposition that jurors should be disinterested. Inasmuch as the juror was excused prior to the taking of the testimony and did not in any way participate in the trial, it is difficult for us to see how Holt was in any way prejudiced by the action of the court and counsel.

In his second allegation, Holt contends that the testimony of one William Leonard Smith should have been excluded on the grounds that he was an accomplice and that his testimony was not corroborated and untrustworthy. It appears that Smith was the chief witness against Holt, and that he and others had participated in the plan of the robbery, but that Smith withdrew when he found that a loaded pistol was to be used therein. Assuming that Smith was an accomplice, there is no modern authority which would exclude his testimony. It is the rule, however, that such testimony must be corroborated. O’Connor v. State, 1 Md. App. 627, 232 A. 2d 551. In the present case, however, Smith’s wife confirmed that Holt with two others had been at her home immediately before and immediately after the hour of the robbery and that Cunningham changed his clothes and left a gun resembling the murder weapon with her husband. This is sufficient to identify Holt with the crime and to corroborate the testimony of an accomplice. Kitt v. State, 2 Md. App. 306, 234 A. 2d 621. In addition, Smith had informed police officials prior to the robbery that a robbery somewhere was about to take place and that he would keep them advised.

The third contention, like the first, is not supported by the record in this case, nor was it presented to the trial court for ruling, and is, therefore, not properly before us but to forestall a collateral attack on this ground, we will also discuss this issue. On cross-examination the witness, Smith, stated that he contacted the police at 9 o’clock the next morning after the robbery. On this question the specific testimony was as follows:

QUESTION: About 9 o’clock the next morning? Did you contact any police officer before 9 o’clock the next morning ?
ANSWER: No.

In the record in the companion case of Cunningham v. State, supra, Holt alleges that Smith had testified that the police came to his house that night about 11 o’clock, and he told them that he would contact Sgt. Watkins later. Holt contends that the State should have been aware of this testimony, and its failure to correct the testimony in the present trial constituted knowingly withholding and suppressing evidence which could have changed the verdict. In the first place the testimony is not entirely inconsistent, since the specific question was “when did you contact the police” rather than when did the police contact you. In addition, it would seem to have no bearing on the guilt or innocence of Holt, whether Smith contacted the police at 11 o’clock at night or at 9 o’clock the next morning. Holt’s counsel could have read the record in the Court of Appeals as well as the Assistant State’s Attorney, who was trying the case. Minor discrepancies in testimony do not make it deliberately false or prejudicial. Dyson v. State, 226 Md. 18, 171 A. 2d 505, cert. den. 368 U. S. 968, 82 S. Ct. 443, 7 L. Ed. 2d 397, McKenzie v. State, 236 Md. 597, 204 A. 2d 678, Cunningham v. State, supra.

Holt next complains that in the cross-examination of two of the state’s witnesses objections were sustained and testimony stricken out concerning the fact that the witness, Smith, was a drug addict. What testimony is allowed on cross-examination, is generally held to be within the discretion of the trial judge. Barger v. State, 2 Md. App. 565, 235 A. 2d 751. Here, Holt failed to call the witnesses as his own, and thus he is precluded from presenting this issue. Harris v. State, 203 Md. 165, 99 A. 2d 725. In addition there was other evidence from which this fact could have been inferred, and we find no abuse of discretion in the trial judge’s action.

Holt next contends that it was error for the trial judge to correct his instructions after objection thereto had been made by the state. Originally the trial judge in his charge explained to the jury the various degrees of murder. After the State had excepted, he corrected his charge to explain to the jury felony murder. Not only is the objection novel and frivolous there was no objection below and the matter is not before us for review. See Maryland Rules 1085 and 756 g.

Holt next complains that his attorney’s final argument to the jury was interrupted because one of the jurors had to go to the washroom. We will discuss this contention no further than say-mg that it is without merit.

Holt next alleges that he was entrapped by the police. The argument in support of this contention seems to be a repetition of Holt’s second contention that Smith’s testimony should not have been received nor believed because he was an accomplice. This was fully answered in discussing contention number 2 above. The evidence showed that Smith reported to the police about four days before the attempted robbery, that he knew of some people who were planning a robbery, and that he would keep the police informed. The morning after the crime had been committed, he did report the matter to Sgt. Watkins. We can see nothing remotely resembling entrapment. There is no evidence to suggest that the police officers or Smith, the informer, suggested the commission of the crime. See Dolan v. State, 1 Md. App. 292, 229 A. 2d 443, Jarrett v. State, 1 Md. App. 448, 230 A. 2d 683, Gamble v. State, 2 Md. App. 271, 234 A. 2d 158 and the cases therein cited.

Finally the appellant contends that there was an insufficiency of the evidence and that his motion for judgment of acquittal should have been granted. The corpus delicti was proven by the doctor’s secretary who was with him at the time of his murder. Holt was identified as one of the perpetrators by Smith, the alleged accomplice, whose testimony was corroborated by his wife as well as, in certain aspects, by the police officers. This contention is also without merit.

Judgment affirmed.


author: Per Curiam.

text:
    EVERETT W. SHIFFLETT v. STATE OF MARYLAND
    [No. 170,
    September Term, 1967.]

      Decided April 4, 1968.

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

      Alan J. Bloom for appellant.

      Henry J. Prankel, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Thomas N. Biddison, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

On April 12, 1967 appellant Everett W. Shifflett was convicted in the Criminal Court of Baltimore, Judge Charles D. Harris presiding without a jury, of storehousebreaking, being a rogue and vagabond, and carrying a concealed deadly weapon. He was sentenced to terms of five years, two years and three years on the respective charges, to be served in the Maryland Correctional Institution. The sentences for storehousebreaking and being a rogue and vagabond were concurrent, and the three year sentence for carrying a deadly weapon was consecutive, totalling in all eight years imprisonment.

The sole contention on appeal is that there was legally insufficient evidence to sustain the convictions.

The evidence adduced at the trial shows that on October 20, 1966, at approximately 7:00 a.m., Edwin S. Vance, manager of Ronnie’s Tavern, noticed two men, one of whom was appellant, parked in a car located in an unusual position for those patronizing the tavern. The car was situated in a nearby field rather than in the parking lot provided for the customers. The two men entered the tavern and departed soon thereafter. Vance testified he left the tavern at 12:00 midnight, but that the barmaid did not close the establishment until 2:00 a.m.

At approximately 2:40 a.m. on the morning of October 21, 1966, Officer Barclay of the Southern District was patrolling in the vicinity of Ronnie’s Tavern. Pursuant to his duties of checking the doors of the stores in the area, he left his patrol car and approached the rear of the tavern with a flashlight in hand. He came upon three white males standing ten feet from the rear window of the tavern. They immediately ran to the rear of some houses adjacent to the tavern. Officer Barclay testified he did not see their faces, but that one of the males was “big and husky and wore a three-quarter length black leather jacket.” He did not give pursuit, but came back to his patrol car and called for assistance. He so positioned his car to observe the alley and the immediate area into which the men had run. Within “two or three minutes” Officer DiStefano, Officer Rainey and Sergeant Strieker joined Officer Barclay. Officers DiStefano and Barclay found two men under a bush in the yard of a home adjacent to the tavern. They were brought to the parking lot. Officers Barclay and Rainey returned to the area, and while in the rear of the house next to where the two men were discovered, appellant, “a big man wearing a black leather jacket” was apprehended. He was crouched down by the steps of a small building at the rear of the house. Appellant’s apprehension took place “120 to 250 feet” from the tavern, approximately ten minutes after the officers arrived at Officer Barclay’s request.

Officers Barclay and Rainey returned to the area where the appellant’s confederates were discovered and found a loaded gun. They next proceeded to the area where appellant was apprehended and discovered a straight razor, black tape and a punch and glass cutter, partially covered by a man’s sock.

Shortly thereafter the police requested Vance to come to the tavern. Upon arrival, he observed the storeroom windows were pried open and the bars on the windows were pulled apart. Furthermore, the pole securing the doors on the inside had been removed, and a crowbar was discovered in the immediate area. Vance testified that the windows were in proper condition the day before.

We stated in Thomas v. State, 1 Md. App. 528, “The test of the sufficiency of the evidence in a case tried before the court without a jury, when reviewed in this court, is whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt of the defendant’s guilt of the offense charged.” See also Chittum v. State, 1 Md. App. 205, 209. Furthermore, “the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.” Thomas v. State, supra; Maryland Rule 1086. We do not find the judgment clearly erroneous.

Appellant relies on Johnson v. State, 227 Md. 159, to show that “* * * presence alone at the place where a crime has been committed is not sufficient to establish participation in the perpetration of the crime.” However, that case also held the presence of the accused at the scene of the crime is an important element in determining the guilt or innocence of the person charged with the crime. As heretofore indicated, the lower court had before it additional elements of convincing evidence which pointed, unerringly, to the appellant’s guilt, including the fact that he and his companions were in possession of burglarious implements, that they fled when the police came on the scene, and that the tavern windows had been pried open.

Appellant alleges the conviction for carrying a concealed deadly weapon was erroneous. The testimony of Officer Barclay established that while the razor was not found on appellant’s person, it was found at the immediate and exact spot where appellant was apprehended. It is established that in order to support a conviction of wearing or carrying a concealed deadly weapon, the State must establish either that the accused was carrying the weapon or that it was in such proximity to him as would make it available for his immediate use. See Corbin v. State, 237 Md. 486. The evidence adduced below dictates that the facts and circumstances of the instant case are within the ambit of the above cited case.

The State concedes that the lower court erred in convicting appellant on the rogue and vagabond count, in light of his conviction of storehouse breaking with the intent to steal goods in excess of $100.00. Treating the State’s concession as an admission that appellant was convicted under that part of the rogue and vagabond statute (Article 27, Section 490) which proscribes being “found in or upon (a) * * * storehouse * * * with an intent to steal,” we agree that such conviction was improper, since that count merged into the greater offense of storehouse breaking. See Buckley v. State, 2 Md. App. 508; Manning v. State, 2 Md. App. 177; Chittum v. State, supra.

Judgment affirmed as to first count (storehouse breaking) under Indictment 5198Y and first count (carrying a concealed deadly weapon) under Indictment 5199; judgment vacated as to- second count of Indictment 5198Y as merging- with the first count (storehouse breaking) of said indictment.


author: PpR Curiam.

text:
    SARAH MATTHEWS v. STATE OF MARYLAND
    [No. 190,
    September Term, 1967.]

      Decided April 4, 1968.

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

      Thomas A. Lohm for appellant.

      William B. Whiteford, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, William A. Linthicum, Jr., State’s Attorney for Montgomery County, and James B. Tomes, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   PpR Curiam.

The appellant, Sarah Matthews, was convicted of two counts of shoplifting and one count of larceny by a jury in the Circuit Court for Montgomery County. She was sentenced to terms of three years on the shoplifting counts and a term of five years on the larceny count, the sentences to run concurrently. On this appeal, appellant contends that her arrest was illegal, and that the evidence seized incident thereto was improperly admitted at her trial.

The evidence adduced at the trial tended to establish that on December 18, 1965, at approximately 5 :00 p.m., twenty dresses of the aggregate retail value of $277.71 were removed without payment from Deb’s Den, Inc., a clothing store in Silver Spring, Maryland. Miss Bonnie Berg, an employee of the store, testified that she observed the appellant in the store with a companion, but that she did not see the appellant leave the store. Miss Berg did not see the appellant remove the dresses from the store’s rack; she did, however, notice their absence shortly after the appellant arrived at the store, and as a result she ran out of the store where she observed an automobile containing three persons pulling away.

Officer John E. Anderson of the Montgomery County Police arrived on the scene shortly thereafter, and as a result of his conversation with Miss Berg he placed a lookout over his police radio for a “Nash Rambler, bearing D.C. registration 8 ER 46, either blue or green or greenish-blue,” to investigate larceny shoplifting. Corporal Scot M. Wittworth, an officer of the Maryland National Park and Planning Commission, received this call over his car radio and shortly thereafter stopped the vehicle in question on a public street, where he observed the appellant sitting on the right side of the vehicle’s front seat. Shining his flashlight on the front seat of the vehicle, Corporal Wittworth observed a large quantity of clothing on hangers. He then checked the driver’s identification.

Detective Robert E. Peay of the Montgomery County Police was also on duty at about 5 :00 p.m. on the evening of December 18, 1965 when he heard the lookout for the green Rambler. He asked the police radio dispatcher to ascertain from the officers on the scene whether the clothing taken would amount to over $100.00 in value so as to constitute a felony. The record does not disclose whether Detective Peay ever received this information. He did, however, observe the vehicle in question where it had been stopped by Corporal Wittworth. The detective testified that as he approached the car, he saw the appellant sitting on the front seat in the middle, and, upon looking inside the car, observed “a bunch of dresses” with hangers on them laying on the floor between the appellant’s feet. He then advised the occupants of the automobile that they were suspects in a larceny shoplifting.

Miss Berg subsequently arrived at the scene of the arrest and identified the appellant as the woman she had seen in the Deb’s Den store prior to the disappearance of the dresses. The dresses in question were removed from the Nash automobile and were identified at the trial as the property of Deb’s Den, Inc. and admitted into evidence over appellant’s objection.

The appellant contends that she was unlawfully arrested in that the arresting officer did not have probable cause to believe that a felony had been committed and that she had committed it. While the record, does not show that Detective Peay was ever affirmatively advised that the goods stolen had a value in excess of $100.00, so as to constitute the felonies of larceny and shoplifting in excess of $100.00, we think it clear that prior to making the arrest, he observed “a bunch of dresses” on the floor of the car between appellant’s feet and that from this observation, coupled with his other knowledge of the crime, he could have reasonably believed that the goods stolen amounted in value to more than $100.00. Under these circumstances, we hold that the arrest of appellant was lawful and that the seizure of the dresses from the vehicle contemporaneous with the arrest was also lawful. In so concluding, we have determined that Corporal Wittworth’s action in stopping the vehicle was without apparent authority since, as an officer of the Maryland National Park and Planning Commission, whose testimony at trial was that he only had jurisdiction “in the Park,” we cannot find that he was vested with police authority to make an arrest on the public street. We do not find, therefore, that the stopping of the vehicle in which the appellant was riding by Corporal Wittworth constituted an action which would have precluded the subequent lawful arrest by Detective Peay.

Appellant further contends that the trial judge should have instructed the jury to disregard the State’s Attorney’s questions concerning a prior conviction which was denied by the appellant and not thereafter proved by the State. As no objection was made at the trial, there is nothing before us to review. Wooded v. State, 2 Md. App. 433.

Finally, appellant contends that the court committed prejudicial error when it failed to grant her motion for a mistrial made during the State’s closing rebuttal argument to the jury. The motion was based on the State’s comment to the jury that it “acts as a protective force to the citizens of Montgomery County.” It is, of course, well settled that the matter of the granting or denying of a motion for a mistrial is within the discretion of the trial court, Barton v. State, 2 Md. App. 52, and we find no abuse of that discretion in this case.

Judgment affirmed.'

      . By Chapter 780 of the Acts of X959, codified as Section 70-50 of the Montgomery County Code (X965 Ed.), the Maryland National Park and Planning Commission is authorized to appoint “such park police officers as may be necessary to protect the park system,” and invests in them “concurrent general police jurisdiction with the Montgomery and Prince George’s County police within the parks and other areas and within buildings under the jurisdiction of the commission.”


author: Pír Curiam.

text:
    MILTON ROYSTER v. STATE OF MARYLAND
    [No. 201,
    September Term, 1967.]

      Decided April 4, 1968.

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

      Joseph Burke for appellant.

      William B. Whiteford, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and John H.

      I. ,ewin, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Pír Curiam.

The Appellant, Milton Royster, was convicted of being a common thief under Md. Code, Art. 27, Sec. 558, by Judge Thomas J. Kenney, sitting without a jury in the Criminal Court of Baltimore and sentenced to three years under the jurisdiction of the Department of Correction.

In this appeal, the sole question is whether the evidence was legally sufficient to sustain the conviction.

The record indicates that on the evening of April 17, 1967, a plain-clothes officer of the Baltimore City Police Department observed the Appellant closely following a woman who was carrying a pocketbook on her arm. Although the Appellant appeared to have his hands in the pockets of his trench coat, the officer observed a hand “come out between the coat,” come to rest upon the woman’s pocketbook and attempt to open it. The officer then observed the Appellant and the woman as they boarded a bus where the Appellant again unsuccessfully attempted to open the woman’s pocketbook. As the woman deposited her fare into the box, the Appellant left the bus and was immediately arrested by the officer.

The Appellant testified in his own behalf, and denied attempting to open the woman’s pocketbook. He admitted, on direct examination, that in October 1966 he had been convicted of the larceny of a wallet and that in 1965 he had been convicted of shoplifting and in 1964 had been convicted of assault with intent to rob.

Article 27, Section 558, the statute under which the Appellant was convicted provides, in part:

“It shall be the duty of all police officers and detectives in Baltimore City to arrest * * * all persons whom they shall find in Baltimore City or upon any train, boat, car or other vehicle commonly used for the transportation of passengers * * * who they shall know or have good reason to believe are common thieves or pickpockets, * * * and it shall be necessary to charge in the indictment only that the person is a common thief or common pickpocket, and any evidence, either of facts or reputation, proving that such person is habitually and by practice a thief or pickpocket, shall be sufficient for his conviction if satisfactorily establishing the fact to the court or jury by whom he is tried,

So far as we have been able to ascertain, the Act has been before the Court of Appeals of Maryland for construction in only two cases. The most recent was State v. Cherry, 224 Md. 144. There the lower court had dismissed an indictment brought under the Act on the ground that the statute was so vague and indefinite as to violate Article 23 of the Maryland Declaration of Rights and the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. The State appealed and the lower court’s action was reversed. Judge Prescott, (later Chief Judge) in speaking for the Court, found “that the word ‘common’ had at the time of the enactment of Section 558, and still has, a technical and well-established meaning in law, which, with the remainder of the statute, fixes an ascertainable standard of guilt, rendering the act sufficiently definite, so that a person of ordinary intelligence will not be left in doubt as to the nature of the acts condemned.”

The only other case, World v. State, 50 Md. 49, was decided in 1878 and there the Court of Appeals concluded that:

“In order to justify a conviction of a party of the offense created by the Act there must be proof of either facts, or reputation, sufficient to satisfy the jury that the party is by practice and habit a thief.”

The Appellant filed a Motion for Judgment of Acquittal at the end of the State’s case which was overruled. He thereupon took the stand and, of course, in doing so withdrew the Motion. Md. Rule 755 b. The history of the Appellant’s convictions came into evidence as a part of his direct testimony. Because of the nature of the crime here involved—a common thief—the evidence of his prior convictions was substantive evidence reflecting upon his guilt or innocence of the charge, as contrasted with the situation where such evidence comes in on cross-examination for impeachment purposes, in which event it may not be considered in determining his guilt or innocence but only in assessing the credibility of his testimony. Wethington v. State, 3 Md. App. 237.

Accordingly, the court below had evidence before it of the two occasions of attempted theft observed by the police officer; the testimony of the Appellant on direct examination that he had been convicted of the larceny of a wallet in October, 1966; that he had been convicted of shoplifting in 1965; and that he had been convicted of assault with intent to rob in 1964. We are of the opinion that this evidence constituted proof of facts legally sufficient to satisfy the trier of facts that the Appellant was by practice and habit a thief within the meaning of the statute.

As this Court has repeatedly stated, our function in reviewing the sufficiency of the evidence in a non-jury criminal case is not whether we might have reached a different result from that of the trial court, but whether the court below had sufficient evidence from which it could be fairly convinced, beyond a reasonable doubt, of the accused’s guilt of the offense charged. The verdict will not be set aside on the evidence unless clearly erroneous, and due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. If the record shows any evidence, or proper inferences from the evidence upon which the trial court could properly have found the Appellant guilty, then its decision was not clearly erroneous. O'Brien v. State, 1 Md. App. 94; Pachmayr v. State, 1 Md. App. 270; Howard v. State, 1 Md. App. 379; Sadler v. State, 1 Md. App. 383; Md. Rule 1086.

Within the framework of the above principles we cannot say that the judgment of conviction by the lower court was clearly erroneous.

      . The holding in World, supra, that since the crime is a misdemeanor evidence of previous convictions is limited to those committed within one year of the crime charged is not applicable here since there not only was no objection to their admission but they came in during' the Appellant’s direct examination.


author: Murphy, C. J.,

text:
    RAYMOND JAMES DUCKETT, JOHN W. SMITH AND JAMES ISIAH LEE, JR. v. STATE OF MARYLAND
    [Nos. 31 and 182,
    September Term, 1967.]

      Decided April 5, 1968.

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

      Henry P. Feonnig, Glenn B. Harten, and Kenneth E. Pruden for appellants Duckett and Smith; Joseph B. O’Brien, Jr., for appellant Lee.

      Alfred J. O’Perrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Benjamin Wolman, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

At a joint trial concluded on November 23, 1966, the three appellants were found guilty by a jury in the Circuit Court for Prince George’s County of the kidnapping and rape of Betty Jean Robinson. Appellants Duckett and Lee were each sentenced to terms of twenty years in the Maryland Penitentiary for rape and three years concurrently for kidnapping. Appellant Smith was sentenced to eighteen years in the Maryland Penitentiary for rape and three years concurrently for kidnapping. On these appeals from those judgments, the appellants contend, both individually and collectively (a) that their arrests were illegal and all evidence thereafter secured from them by the police, both tangible and intangible, should not have been received in evidence, and (b) that statements made by them to the police following ■ their arrests were inadmissible as having been secured in violation of the principles enunciated in Miranda v. Arizona, 384 U. S. 436, and (c) that their post-arrest identification by the victim was conducted under conditions violative of their Fourteenth Amendment rights, and evidence of their silence while in police custody in the face of the victim’s accusations was also improperly admitted in evidence against them, and (d) that the lower court erred in failing to grant their respective motions for a mistrial. The appellant Smith raises the further contention that the evidence was insufficient to convict him as a principal under the kidnapping charge.

There was evidence adduced at the trial tending to establish that on the evening of Saturday, September 24, 1966, Mr. and Mrs. Evon Robinson were returning to their home in Washington, D. C. from Waldorf, Maryland where they had been visiting Mrs. Robinson’s aunt, Inez McConnell. As they were unable to get a bus to the District, the Robinsons stopped at the State Police Barracks at Waldorf to inquire about taxi service. Since this mode of transportation proved too expensive, Mr. and Mrs. Robinson returned on foot to Route 301 where they hoped to flag down a- bus to the District line. At this time a car containing six male youths, including the three appellants, stopped, and the occupants agreed to transport the Robinsons to the District line. The Robinsons entered the car which proceeded up Route 301 for a time before turning off on a side road. The youths explained to Mr. and Mrs. Robinson that they were going to stop at a house party and that they would later transport them to their destination. The Robinsons accompanied the six youths to the party at the home of Mrs. Harriett Swann where they remained for approximately an hour. Upon their departure they got into the same car with the same six youths and an additional unidentified young man. They proceeded a short distance when the driver stopped and announced that the car had a flat tire. All of the occupants, except the driver and Mrs. Robinson, got out of the car to fix the tire. The driver then drove off with Mrs. Robinson, immediately after which the appellant Dee fired several shots at Mr. Robinson. The six youths, including the three appellants, then ran after and reentered the car. Restraining Mrs. Robinson, they drove off, stopping again at a field where they threw her out on the grass, beat her about the face, and held her down while each had sexual relations with her. The youths then departed, leaving Mrs. Robinson in the field. She subsequently made her way to a church where she spent the remainder of the night on the steps, being discovered in the morning by a caretaker, who took her to her aunt’s home in Waldorf.

After the seven youths had driven off with his wife, Mr. Robinson located a house and called the Maryland State Police at the Marlboro outpost. Trooper David Miller, responding to the call, met Mr. Robinson at approximately 3:30 a.m. on the morning of September 25. Mr. Robinson related the story of his wife’s abduction to Trooper Miller, informing him that the car in which she was taken was an old model Chevrolet with damage to the left rear fender. An hour-long search of the area revealed nothing, and they returned to Marlboro. The search was resumed at 6:00 a.m., during the course of which Mr. Robinson identified the Swann residence. Trooper Miller spoke with Mrs. Swann who told him that she had had a party the night before, that she recognized Mr. Robinson as having been there, and that she thought that one of the Duckett boys, as well as a boy named Isiah, were involved in the crime. Trooper Miller then returned to Marlboro with Mr. Robinson and reported the results of his investigation to Corporal Don Edward Ansell. After Mr. Robinson told Corporal Ansell about the crime, and provided him with descriptions of the abductors, he was shown several photographs and picked out those of appellants Duckett and Lee as two of the participants in the crime. Corporal Ansell then obtained warrants for the arrests of appellants Duckett and Lee. Later that morning, at approximately 11:00 a.m., Mrs. Robinson was brought to police headquarters where she related the story of her abduction and rape to Trooper Ansell, giving him descriptions of her assailants at that time.

At approximately 11:30 a.m. on September 25, Corporal Ansell, together with Trooper First Class Fisher, located the appellant Duckett driving a 1955 Chevrolet with damage to the left rear fender. The policemen stopped the car and told Duckett that he was under arrest. Duckett got out of his car and stood between it and the police cruiser. In Corporal Ansell’s presence, Trooper Fisher advised Duckett:

“that anything he said could be used against him, he advised him that he had a right to remain quiet, that he had a right to contact his own attorney, if he couldn’t afford an attorney the court would appoint him an attorney.”

The officer asked Duckett “if he wanted a lawyer,” to which Duckett replied “no.” After the officers had searched Duckett’s car, and discovered a blue skirt and a revolver, they asked Duckett “where the woman was from last night,” to which question he replied that he “didn’t know anything about a woman.” Ansell then asked him to account for his whereabouts during the early morning hours of September 25. Duckett stated that he had been with his wife, but then changed his story and told the officers that he was with his girlfriend and had spent the entire night with her. In response to further questioning, he stated that he had been shooting dice at about approximately 10:30 or 11:00 p.m. on the night of September 24 and that the car he was driving was owned by a friend, Richard Savoy.

Appellant Lee was arrested at 12 :15 p.m. on the same day by Corporal Ansell and Trooper Fisher as he was emerging from a tavern. As Lee was standing outside of the police car, Corporal Ansell advised him that:

“anything he said could be used against him, he had a right to remain silent, he had a right to contact an attorney, he had a right to a court-appointed attorney if he could not afford his own attorney.”

When asked “if he desired an attorney” appellant Lee replied “no.” After Lee had been placed in the police cruiser, Ansell asked him “about the kidnapping of Betty Jean Robinson.” Lee responded, stating that “he didn’t know what we were talking about, that he was trying to keep out of trouble and we kept picking him up and he didn’t do anything wrong, said he never saw a man or woman the night before.”

On the afternoon of September 25, after the arrests of appellants Duckett and Lee, Corporal Ansell visited the residence of Mrs. Swann who told him that two of the boys who were with Duckett and Lee were from Louisiana and were working on the Downing farm in Naylor. Corporal Ansell proceeded to the farm and was told that several boys from Louisiana did work there, including appellant Smith. Smith was not at the farm then, but Corporal Ansell learned from a farm employee that Smith and another boy had been out the night before and that when they came in “Smith had a whole bunch of stuff over the front part of his pants by the fly and they were talking about how they had taken some woman away from her old man and taken her down and raped her.” Smith’s pants were then shown to Corporal Ansell, who thereupon obtained a warrant for Smith’s arrest. Smith was arrested later that night at approximately 10:00 p.m., while at a park and in the company of four colored males, including Willie Griggs, another suspect. Prior to being placed in a police cruiser, appellant Smith and Griggs were advised by Corporal Ansell that:

“I told them anything they said could be used against them, that they had a right to remain silent, that they had a right to contact an attorney of their own choosing, that they had a right to a court-appointed attorney if they couldn’t afford one of their own.”

In response to Ansell’s question as to whether they “wanted an attorney,” appellant Smith replied “no.” Appellant Smith and Griggs were then placed in a police car and taken to police headquarters where Smith, without any further warning's being given to him, was questioned about the crimes and acknowledged his familiarity with them, stating that he was willing to discuss the crimes with the police. In response to questioning by police, appellant Smith admitted that he had been in the car and had picked up “a couple on 301,” that they went to a house party, after which they drove down the road, “fired a gun,” and then drove to the place where the “woman was raped.” Smith then identified photographs of Griggs and two others who had participated in the crime. He showed the police where one of the boys who had participated in the crime lived, and also directed police to a field off of Brooks Church Road, where he stated that the rape had occurred. With Smith’s help, the officers searched the field and found a rent receipt, a black shoe and a piece of an undergarment, all of which belonged to Mrs. Robinson.

On the morning of Monday, September 26, the three appellants were taken to the Peoples Court at Marlboro for a preliminary hearing. The presiding magistrate informed each appellant of his right to counsel, either retained or appointed, his right to a hearing, and his right to waive a hearing, together with the consequences of such a waiver. Each of the appellants chose to waive the preliminary hearing. Following this procedure, the appellants were placed in several line-ups, but evidence that they were identified by Mr. and Mrs. Robinson was stricken from the record.

Subsequently, on September 29 at about 5 :00 p.m., in the attorney’s room at the county jail in Marlboro, each appellant was individually confronted with and identified by Mr. and Mrs. Robinson as having been participants in the kidnapping and rape. When thus confronted by the Robinsons, appellant Duckett stated, “I have seen you all before.” When appellant Lee was similarly identified, he stated, “You take a good look at me, you have never seen me since we got out of the car in the road.”

Mr. and Mrs. Robinson identified the appellants at the trial. Appellant Smith took the stand in his own behalf, admitted having relations with Mrs. Robinson, but stated that she had voluntarily submitted for a $5.00 fee. Appellant Lee also testified, stating that he had left the scene at the time of the flat tire incident, and had not had relations with the prosecutrix. Motions for judgment of acquittal on behalf of each appellant offered at the end of the entire case, were denied by the court.

The Legality oj the Arrests

Appellants contend that their arrests were illegal because Corporal Ansell did not make oath or affirmation before the magistate when he obtained the arrest warrants. While the State concedes that the warrants were invalid for failure of Corporal Ansell to make the requisite oath, it contends that the arrests were nevertheless lawful as having been based on probable cause to believe that a felony had been committed and that appellants had committed it. Notwithstanding the invalidity of the arrest warrants, and the fact that the officers, in making the arrests, purported to do so by authority of the warrants, we think the arrests were lawful.

Prior to their arrests, appellants Duckett and Lee had been identified from their photographs by Mr. Robinson as two of the men who had abducted his wife. lie also identified appellant Lee as the person who had fired the shots at him, and described the car in which his wife was abducted as an old model Chevrolet with damage to the left rear fender. The officers knew from Mrs. Robinson that a rape had occurred and had a description of the persons involved. Mrs. Swann had verified the fact that the Robinsons had been to her house on the night of the crimes. And when the officers apprehended appellant Duckett, he was driving a car of the same description as that in which, according to Mr. Robinson’s information to the police, his wife had been abducted.

Prior to appellant Smith’s arrest, the officers had been advised by Mrs. Swann that two of the boys at her party on the night of the crime, worked at a nearby farm. The police thereafter went to the farm and there learned that Smith and a companion had been out the night of the crime, that Smith had returned with semen on his trousers, and had bragged about having raped a woman.

It is, of course, elementary that a police officer may make an arrest without a warrant where he has reasonable grounds or probable cause to believe at the time of the arrest that a felony has been committed and that the person arrested has committed the offense. Edwardsen v. State, 243 Md. 131; Lewis v. State, 2 Md. App. 678; Gaudio v. State, 1 Md. App. 455. In Berigan v. State, 2 Md. App. 666, we intimated that even though an arrest warrant was void, nevertheless if there was probable cause to arrest for a felony, the arrest would have been lawful. Compare Gattus v. State, 204 Md. 589, a case involving a void search warrant, where the court indicated that if, in executing the warrant, a misdemeanor was being committed in the presence of a police officer, an arrest and subsequent search incident thereto could have then been made, notwithstanding the fact that the search warrant was itself invalid. To the same effect, see People v. Grubb, 58 Cal. Rptr. 670 (Ct. App., 5th Dist.).

We conclude, therefore, that the arrests were lawful on the ground that the arresting officers had probable cause to believe that a felony or felonies had been committed and that appellants were the guilty participants. We further hold that the contemporaneous search of appellant Duckett’s car at the scene of his arrest was likewise lawful; and that the revolver and skirt taken from his vehicle at that time were properly received in evidence.

The Admissibility of Appellants’ Oral Statements

As heretofore indicated, the record discloses that each appellant was told, at the time of his arrest, of his right to remain silent, that anything he said could be used against him in court, that he had a right “to contact” an attorney, and that he had a right to a court-appointed attorney if he could not afford his own attorney. The record further discloses that after the Miranda warnings were given to appellants, each of them was asked whether he wanted or desired an attorney and each responded in the negative, and proceeded to answer police questions concerning his knowledge of the crime.

Appellants Duckett and Lee contend that their oral exculpatory statements made at the time of their arrests were inadmissible in evidence on the ground that the arresting officers did not, in advising them of their rights under Miranda, tell them that they had a right to the presence of counsel prior to questioning them. Appellant Smith advances the same contention with reference to the oral inculpatory statement which he made at the police station immediately following his arrest. The State contends on the other hand that all required Miranda warnings were given prior to interrogation, but that in any event the statements were admissible in evidence since they were voluntarily given, and did not result from “custodial interrogation” within the meaning of the Miranda decision. In Miranda, the court, in the introductory phases of its opinion, held at page 444 that prior to any custodial interrogation by police, the person to be interrogated must be advised, inter alia, that he “has a right to the presence of an attorney, either retained or appointed.” In the course of its opinion, the court made it entirely plain at page 469 that the “right to the presence of an attorney” meant “the right to have counsel present at the interrogation.” More specifically, the court held at page 471 “that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation,” and that “this warning is an absolute prerequisite to interrogation.” The court emphasized the importance of this warning when it held at page 469-470 that “the right to have counsel present at the interrogation is indispensible to the protection of the Fifth Amendment privilege” and that “the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.” Indeed, one of the reasons given by the court for reversing Miranda’s conviction was because he “was not in any way apprised of his right to consult with an attorney and to have one present during the interrogation.” 384 U. S. at page 492.

It is clear to us, therefore, that it is of the essence of the Miranda rationale that to fully protect the Fifth Amendment privilege a person about to undergo custodial interrogation must be informed, in substance, “that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.” The Court of Appeals of Maryland so concluded in Campbell v. State, 244 Md. 363, and in Westfall v. State, 243 Md. 413. In Thomas v. State, 3 Md. App. 101, we held that failure of police to advise a prisoner subjected to in-custody interrogation of his right “to the presence of an attorney” during the interrogation was such an omission of a crucial Miranda warning as to render the accused’s confession in that case constitutionally impermissible. In Hunt v. State, 2 Md. App. 443, we held that Miranda required, inter alia, that a prisoner be told, prior to undergoing custodial interrogation, that “he had a right to have counsel present during the actual questioning and to consult with him.”

We hold that merely advising a person who has been arrested and who is ábout to be questioned with reference to the crime that he has a right “to contact” a lawyer does not comport with Miranda requirements concerning the warning of his right to the presence of counsel. Nor does the advice that the prisoner has a right “to contact” a lawyer, coupled with an inquiry as to whether he wants an attorney, constitute, in our judgment, the substance or equivalent of advice to the person that he “has the right to consult with a lawyer and to have the lawyer with him during interrogation.” And the fact that appellants expressly declined the police offer of an attorney does not, in the circumstances of this case, amount to an intentional relinquishment or abandonment of a known right or privilege—this being the test of waiver enunciated in Miranda—since the scope of their right to the presence of counsel was never initially explained to them in the terms required by Miranda. See Johnny Mack Brown v. State, supra. While we think the warning principles announced in the Miranda case must be applied reasonably, and with common sense, and do not constitute an arid, ritualistic formula to be administered inflexibly (see Commonwealth v. Wilbur, 231 N. E. 2d 919, 923 (Mass.)), we conclude that the substance of the required warning of appellants’ right to counsel was not given to them prior to interrogation.

We further hold that at the time each appellant responded to questioning by police, he was under arrest and “in custody” within the meaning of the Miranda decision. In Miranda, it was held at page 444 that “custodial interrogation” meant “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” In Gaudio v. State, supra, we had occasion to consider in detail the exact reach of the term “custodial interrogation,” as used in Miranda. We there noted that Miranda was primarily concerned with the evils of incommunicado interrogation of individuals in a police dominated atmosphere, such as in the interrogation room of a police station. We concluded in Gaudio that Miranda does not forbid all inquiry of an accused without warning under all circumstances. In Carwell v. State, 2 Md. App. 45, we held that Miranda did not apply to a case where after arrest, but before any questioning was initiated, the defendant “blurted out” a statement. In Crosby v. State, 2 Md. App. 578, we held that Miranda did not require that an arrestee, at the time of his arrest, be immediately informed with respect to the procedural safeguards established by Miranda. In Morgan v. State, 2 Md. App. 440, we held that an individual suspected of a crime may be questioned while on the street, and not in an arrest status, without the necessity of first advising him of the constitutional protections afforded under the Miranda decision. To like effect, see Jones v. State, 2 Md. App. 429. In Duffy v. State, 243 Md. 425, it was held that an accused suspect need not be advised that he has the right to the presence of counsel before the first question can be propounded to him, since Miranda was not applicable to a confession gleaned from a suspect who was merely accosted by the police.

The New York Court of Appeals, in People v. Rodney P., 233 N. E. 2d 255, 286 N. Y. S. 2d 225, in considering “the problem of defining precisely the circumstances and conditions in which the police are required to advise an individual of his constitutional rights [under Miranda] before proceeding with interrogation,” reached this conclusion (286 N. Y. S. 2d, at page 234):

“* * * since, as a practical matter, a person’s freedom is restrained or it is not, and he either feels free or does not, we believe that, in prefacing the word ‘restraint’ with the adjective ‘significant’, the Supreme Court intended that the warnings be given when the questioning takes place under circumstances which are likely to affect substantially the individual’s ‘will to resist and compel him to speak where he would not otherwise do so freely.’ ”

Appellants Duckett and Lee were questioned immediately after their arrest by the police as they stood near the police car, and part of the interrogation of appellant Lee appears to have been conducted while he was sitting in the police car. Appellant Smith’s post-arrest interrogation was conducted at the police station. That each appellant’s statement resulted from a custodial interrogation within the meaning of Miranda is too clear to require further discussion.

We conclude further that the error in admitting appellants’ statements was not harmless within the meaning of Chapman v.. California, 386 U. S. 18. In that case, the Supreme Court held that there may be some federal constitutional errors which, in the setting of a particular case, are so unimportant and insignificant that they may, consistent with the federal constitution, be deemed harmless; but that before a federal constitutional error could be held harmless in a State criminal trial, the appellate court reviewing the conviction “must be able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U. S., at page 24.

Appellant Smith’s statement was inculpatory and its admission against him contrasted sharply with his trial testimony that Mrs. Robinson consented to the intercourse. Appellant Lee’s exculpatory statement denying knowledge of the victim’s existence contrasted with his testimony at the trial that he had been in the car with the other participants in the crime, but had not had relations with the prosecutrix. Appellant Duckett’s statement, although exculpatory, was self-contradictory, in that he first told police that he had been with his wife at the time of the crime, and changed his story, telling the officers that he had been with his girlfriend at that crucial time. Duckett’s account of his whereabouts on the night of the crime was, therefore, conflicting and conveyed the impression that he was not truthful, thus tending indirectly to lend credence to the victim’s identification of him as having been one of the participants in the crime. Under these circumstances, we cannot find that the admission of any of the statements was harmless beyond a reasonable doubt.

As a new trial must be granted for error in admitting appellants’ statements into evidence, the question of whether the court erred in failing to grant appellant’s motions for a mistrial, and the question of whether the evidence showed that appellant Smith was a principal in the kidnapping case, need not be answered. We deem it essential, however, to briefly express our views with respect to appellant Smith’s argument that as his inculpatory statement was the source which led the police to the open field where the victim was raped, the tangible evidence there found (the victim’s shoe and rent receipt, and a piece of cloth) was inadmissible under the “fruit of the poisonous tree” doctrine. While it may be true that the officers found these items with Smith’s assistance, we think their use in evidence at the retrial of the case would not be prohibited by the application of the doctrine upon which appellant Smith places reliance. Without deciding whether that doctrine is applicable in State criminal trials, we believe that the evidence would in any event have been discovered by the police without Smith’s assistance since the victim herself could have undoubtedly identified the scene of the crime. Smith’s oral statement to the police, however, whereby he told the officers where one of the other participants in the crime lived would, in our judgment, be inadmissible as against him, since it stemmed from custodial interrogation initiated by law enforcement officers without fully advising the accused of his rights under the Miranda decision.

Finally, on the state of the record before us, it does not appear, as contended by appellants, that it was the purpose of the State to introduce evidence that the appellants maintained silence in the face of the victim’s accusation of their guilt when confronted with the victim at the police station four days after their arrest. As the appellants were then in police custody, the admission of evidence calculated to show that they stood mute in the face of such accusation would, of course, have been clear error. See Miranda v. Arizona, supra, Footnote 37; Cooper v. State, 231 Md. 248; Miller v. State, 231 Md. 215; Barnes v. State, 1 Md. App. 123. What the record does indicate is that at appellant Lee’s request, he was confronted with the victim and after she had accused him of being one of the participants in the crime, he stated, in effect, that he had seen the victim “in the car in the road.” We believe the circumstances of Lee’s confrontation with the victim are not such as would preclude the admission into evidence of his response to the victim’s accusation. In so concluding, we are mindful of the fact that the confrontation occurred prior to June 12, 1967, the date upon which the Supreme Court handed down United States v. Wade, 388 U. S. 218, and Gilbert v. California, 388 U. S. 263, both of which indicate that a pretrial line-up, at which the accused is exhibited to identifying witnesses, is a critical stage of the criminal prosecution; and that conducting such a line-up in the absence of an effective waiver, and without notice to and in the absence of counsel for the accused, denies him his Sixth Amendment right to counsel. As Wade and Gilbert affect only those cases involving confrontations for identification purposes conducted in the absence of counsel after June 12, 1967, Stovall v. Denno, 388 U. S. 293, Tender v. State, 2 Md. App. 692, they have no direct application to Lee’s case.

Unlike Lee, appellants Duckett and Smith did not request that they be confronted with the victim and the motivation and purpose of the police in arranging such a face to face confrontation is not altogether clear, particularly in view of the fact that the victim and her husband had identified appellant Duckett on three prior occasions and the appellant Smith on at least one prior occasion. While it would thus appear that the primary purpose of the confrontation was not to have the victim make another identification, there is nothing in the record before us. to indicate that the police, in arranging the confrontation, did so to create an inherently compulsive atmosphere, one calculated to elicit an admission of guilt from the appellants after the victim accused them of the crime. We do not decide, therefore,, whether the procedure followed by the police in confronting appellants Duckett and Smith with the victim, under the circumstances, violated any of their constitutional rights.

Judgments reversed. Case remanded for a new trial.

      . While it is not entirely clear from the record, it appears that Mrs. Robinson and Mrs. Swann identified photographs of the appellants Duckett and Lee after they had been arrested, rather than before, so that these identifications may not be considered in determining the existence of probable cause to make the arrests.

      . The record does not indicate that appellants were asked whether they understood the import of the Miranda warnings and were nevertheless willing to respond to police questioning. See Johnny Mack Brown v. State, 3 Md. App. 313.


text:
    PATRICIA ANNETTE LOCKARD v. STATE OF MARYLAND
    [No. 14,
    September Term, 1967.]

      Decided April 9, 1968.

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

      William P. Mosner for appellant.

      Bernard L. Silbert, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Edward A. DeWaters, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Patricia Annette Lockard complains of a conviction of obtaining money by false pretenses in the Circuit Court for Baltimore County in a trial before Judge John E. Raine sitting without a jury. She alleges that the evidence was insufficient to support her conviction and that a five (5) year sentence was excessive.

There was evidence on which the trial judge could have found that: Patricia Annette Lockard was identified as the woman who had a chance meeting with a certain Margaret C. O’Grady in Dundalk on May 22, 1966, when the latter struck up a conversation with her concerning flowers; and in an ensuing conversation, Lockard stated that her husband had been recently killed in an automobile accident. Mrs. O’Grady inquired if there was enough insurance for the family’s protection, and appellant told her that she had received $5,000 which she then had with her in her purse and was looking for a place to deposit it. Mrs. O’Grady could not give her any recommendation. The conversation continued and Lockard stated that she lived in Essex where a lady was then baby-sitting for her four-month-old child, and she then recounted a recent meeting with another woman who told her that she had found a package containing $600 and some betting slips. This woman did not know what to do with the money, and Lockard said she told her to keep it.

After Lockard and Mrs. O’Grady conversed a while longer the lady who had allegedly found the $600 approached them and asked if Lockard had told anyone about the money. This third woman then joined the conversation and told the other two that she worked across the street for a lawyer and that she was going to ask him what to do about this found money. The third lady left the other two but returned a short while later telling them that, in addition to the $600, her “boss” had found two ■one-thousand dollar bills in the envelope, and that he told her that she should just keep the money. The third lady and her ■“boss” then decided it would be wise to give the other two ladies who knew of the incident the sum of $200 each to make sure they would keep quiet about it until “this thing blows over,” but before giving each of them $200 the third lady’s “boss” wanted to make sure that both Lockard and Mrs. O’Grady bad enough money to live on for four or five months, so she asked if both of them could show her that they had $1,200 that she could show to her “boss.”

Mrs. O’Grady “bit on it” and the third lady sent her and Lockard to Mrs. O’Grady’s building and loan association where she was to withdraw the sum of $1,200 and bring it back with her. At the building and loan association Lockard represented herself “to be a friend of the family” and stated that the $1,200 -was for an “emergency.” This was done, and the two returned to find the third lady waiting, whereupon Mrs. O’Grady and Lockard both gave the third lady envelopes or packages purporting to contain their $1,200.

Mrs. O’Grady stated “* * * and I wasn’t, thought I wasn’t going to give it to her. Then she said, well this lady gave me hers. I had seen her give her a package of some kind and I thought having all that money with her she could give it to her, so, unfortunately, I left [sic] her have the envelope.”

The third woman then took the envelopes across the street to show to her “boss,” but returned shortly and said that his •office was full of people so that she was not able to see him. She announced that she was going back and wait for him, and that the other two were to wait for her. After Lockard and Mrs. O’Grady had waited for a length of time, Lockard stated that she had to phone her baby-sitter, and she left to make the call.

After waiting one hour, Mrs. O’Grady decided to look for the woman with the money, so she crossed the street to the office building which she had entered, but Mrs. O’Grady could not find the office or locate anyone in the hall. She came back across the street and immediately met a friend of hers who was the teller who worked at the building and loan association and who had given her the $1,200. When Mrs. O’Grady told her what had happened, this lady, a Mrs. Clark, looked for the lawyer or the third lady in the office building but found “nothing;” she then took Mrs. O’Grady to the police.

There was also evidence from which a trial judge could have found that Lockard gave Mrs. O’Grady the false name of “Sara Valenti;” that Lockard’s husband had not been recently killed in an automobile accident and therefore she was not in possession of $5,000 insurance money; and further that she did not have a four-month-old child. Lockard was identified by both Mrs. O’Grady and Mrs. Clark. Mrs. O’Grady never saw either of the women again until after they were arrested.

In Smith v. State, 237 Md. 573, 207 A. 2d 493, 495 the Court of Appeals of Maryland stated that there were three elements which constituted the crime of obtaining money by false pretenses in violation of Section 140, Article 27 of the Md. Code namely “(1) false representation of a past or existing fact; (2) made with intent to defraud; and (3) that the victim actually relied on the false representations to her loss.”

With respect to the first element, Lockard made the following false statements during the transaction: (1) that her name was Sara Valenti (2) that she lived in Essex (3) that her husband had recently been killed in an automobile accident (4) that she was carrying $5,000 of his insurance money in her purse (5) that she was a friend of the family and (6) that the $1,200 was for an “emergency.” In respect to the second element of false pretenses, we think that under all of the circumstances of this case the foregoing false statements are sufficient for the trial judge to find an intent on the part of Lockard to defraud Mrs. O’Grady. With respect to the third element, the testimony quoted above as to when Mrs. O’Grady stated that she parted with her money because she thought Lockard was also parting with hers, is sufficient to show the reliance on the representations. Lockard contends that Mrs. O’Grady was never asked if she got her money back. On the facts of this case it seems to us this question was superfluous. The trial judge stated, and we agree, “Well, it is completely uncontradicted that somebody practiced the old flimflam on the aged Mrs. O’Grady, and the sole question here is one of identification.” The trial judge relied on identification not only of Mrs. O’Grady but Mrs. Clark, and we cannot say that his finding was clearly erroneous. Maryland Rule 1086.

Lockard’s second contention that the trial judge’s sentence was dictated by passion, prejudice and ill will, or some other unworthy motive under Gee v. State, 2 Md. App. 61, 233 A. 2d 336, because he stated that he thought it was more reprehensible for flimflam parties to victimize the gullible and that although he did not think punishment in general deterred others, he thought that in this type of crime severe sentences would at least cause others not to practice it within the jurisdiction of the trial court. We think that these do not show that the trial judge was motivated by other than his sense of public duty. Thomas v. State, 2 Md. App. 645, 236 A. 2d 747. The sentence was within the statutory limits and is therefore not subject to review by this court. Washington v. State, 2 Md. App. 633, 236 A. 2d 32.

Judgment affirmed.


text:
    JAMES FARLEY, JR. v. STATE OF MARYLAND
    [No. 62,
    September Term, 1967.]

      Decided April 9, 1968.

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

      Joseph Rosenthal, with whom was John W. Moyer on the brief, for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Robert S. Rothenhoefer, State’s Attorney for Frederick County, on the brief, for appellee.
   Per Curiam.

Appellant, together with one Donald Prendergast, was charged under a two-count indictment with attempted store-housebreaking with intent to steal goods over the value of $100.00, and with being a rogue and vagabond. Tried separately, appellant was convicted on both counts and sentenced to three years for the attempted storehousebreaking and eight months on the rogue and vagabond count, the sentences to run concurrently. On this appeal, appellant contends (a) that the evidence was insufficient to sustain the conviction, and (b) that the court erred in convicting him of being a rogue and vagabond, since that count merged into the conviction of attempted storehousebreaking.

The evidence adduced at the trial showed that the police received a call at 3 :30 a.m. on January 23, 1966, alerting them that someone was attempting to break into a Rexall drugstore-at a specified location in Frederick, Maryland. Two police officers immediately went to the scene, Sergeant Wheelson going to the front of the store, and Officer Boone going to the rear through an alley separating the store from an apartment house. It was snowing at the time and had been for some hours before the officers were called to the scene. Officer Boone observed a set of footprints in the snow which led from the street into the alley. He further observed that the bars of a window in the-drugstore had been pried apart and that a car jack was lying on the ground under the window. As he proceeded further into the alley, Officer Boone heard a thump-like noise and saw a large screwdriver fall to the ground at the rear portion of the alley. He observed appellant standing about three feet from where the screwdriver had fallen upon the ground—a point about ten feet from the drugstore. Appellant was arrested and a search of his person revealed an operational walkie-talkie radio. A further investigation disclosed the fact that the footprints which Officer Boone had observed in the alley led directly to an automobile later ascertained to belong to appellant. The evidence further indicated that the drugstore’s inventory was in excess of $15,000.00.

That the evidence was sufficient to sustain the conviction of attempted storehousebreaking is too clear to require extended discussion. An attempt to commit storehousebreaking consists of an act done in pursuance of criminal intent falling short of the actual commission of the crime, coupled with at least apparent ability to commit the intended crime. See Boone v. State, 2 Md. App. 80. The facts manifestly support appellant’s conviction for attempted storehousebreaking.

Although not entirely clear from the record, it appears that appellant’s conviction for being a rogue and vagabond was based upon that part of the statute (Article 27, Section 490 of the Maryland Code (1967 Repl. Vol.)) which proscribes any person from being “apprehended having upon him any * * * jack, bit, or other implement, at places and under circumstances from which an intent may be presumed feloniously to break and enter into any * * * storehouse.” It is not necessary to prove actual physical possession of such implements at the time of the arrest, an inference drawn from proper evidence sufficing to establish the requisite elements of the offense. Day v. State, 2 Md. App. 404; Thomas v. State, 1 Md. App. 528. Evidence need not be positively connected with the accused or the crime in order to render it admissible; it is admissible where there is a probability of its connection with the accused or the crime, the lack of positive identification affecting the weight of the evidence, rather than its admissibility. Woodell v. State, 2 Md. App. 433. We hold that there was a probability of appellant’s connection with the jack and the screwdriver and that the trial judge, in concluding that appellant was guilty of having such implements upon him, as provided in the statute, was not clearly erroneous in so concluding.

Finally, we hold that the offense of rogue and vagabond does not merge into the offense of storehousebreaking where the rogue and vagabond conviction is based upon that part of the statute proscribing any person from being apprehended “having upon him,” as here, any “jack, bit, or other implement, at places and under circumstances from which an intent may be presumed feloniously to break and enter into any * * * storehouse, * * *.” Compare Buckley v. State, 2 Md. App. 508; Manning v. State, 2 Md. App. 177. See also Tender v. State, 2 Md. App. 692.

Judgnient affirmed.


author: Orth, J.,

text:
    JOHN W. CHESLEY v. STATE OF MARYLAND
    [No. 157,
    September Term, 1967.]

      Decided April 9, 1968.

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

      Harvey Lee Cohen for appellant.

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

delivered the opinion of the Court.

The appellant was found guilty in a trial by the court in the Criminal Court of Baltimore of the rape and robbery of Molly Manigold. He was sentenced to imprisonment for the balance ■of his natural life on the rape conviction and to a term of 10 ..years on the robbery conviction to run concurrently with the life sentence.

On appeal the appellant contends :

I The lower court erred in denying his motion to dismiss the indictments.
II The evidence was not sufficient to sustain the convictions.
Ill He was denied due process of law by suppression of evidence by the State.

I

The appellant filed a motion to dismiss the indictments on the .grounds that he was not afforded the benefit of counsel “when he was presented for indictment before the Grand Jury” and was “denied his constitutional right to confront and cross-examine witnesses against him which Grand Jury heard”. The motion was denied.

In Watson v. Warden, 2 Md. App. 134 we held that there was no denial of rights guaranteed by the 6th and 14th Amend'ments to the Constitution of the United States by the exclusion ■of an accused and his attorney from the proceedings of the grand .jury leading to indictment. We cited Coblentz v. State, 164 Md. 558, where the Court said, pages 566-567:

“The grand jury is an accusing body, and not a judicial tribunal; and it acts upon knowledge possessed by its members from any source, whether from witnesses brought before it, or from information gained before its sessions. Tn this state they have plenary inquisitorial powers, and may lawfully themselves, and upon their own motion, originate charges against offenders, though no preliminary proceedings have been had before a magistrate, and though neither the court nor the state’s attorney has laid the matter before them.’ Blaney v. State, 74 Md. 153, 21 A. 547, 548; In re Grand Jury Report, 152 Md. 616, 137 A. 370. And their oath requires them to present all things truly as they come to their knowledge, according to the best of their understanding. But it is an inflexible requirement that their investigations shall be carried on secretly and free from outside interference or influence; and great care is taken that they shall be so carried on. The purposes of this are many. Freedom of inquiry is to be preserved, and at the same time individuals whose conduct may be investigated, but against whom no indictment may be found, are to be protected from disrepute, and all individuals are to be protected from one-sided presentations of unfavorable evidence, without opportunity to reply, before any one present unnecessarily. See In re Grand Jury Report, 152 Md. 616, 631, 137 A. 370. This protection from one-sided hearings has, indeed, been regarded as demanded in constitutional provisions for inauguration of criminal proceedings by indictment. Comm. v. Harris, 231 Mass. 584, 121 N. E. 409. It is, moreover, “inherent in the grand jury system with all the force of a statutory enactment.’ United States v. Edgerton (D. C.), 80 Fed. 374, 375. And it is found embodied in the familiar grand jury oath that the members sworn shall keep secret the counsel of the state, their fellows, and their own, and shall not present any one for envy, hatred, or malice, nor leave any one unpresented for fear, favor, or affection, or hope of reward. The rule is not merely a remedial one, that injury shown to have been sustained by the accused in a particular case shall be remedied, but also a preventive one, which interposes in advance for private benefit and public benefit as w’ell. Discriminations between degrees of departure from it are difficult to manage, and, unless the bar is maintained in all cases, it can hardly have any effective existence. Therefore the law must act upon the existence of opportunity rather than await proof of abuse, as in cases of communications with petit jurors, and also in civil cases of conflicts of interests of agents, attorney, or trustees. Mason v. Martin, 4 Md. 124; Gaither v. Myrick, 9 Md. 118, 143; Derlin v. Derlin, 142 Md. 352, 121 A. 27. ‘Their findings must be their own, uninfluenced by the promptings or suggestions of others, or the opportunity thereof.’ Lewis v. Board of Commrs. of Wake County, 74 N. C. 194.”

We said in Watson at page 140:

“No Attorney, other than the State’s Attorney, his assistants, or someone appointed in their stead is permitted to attend the proceedings before the grand jury. Coblentz v. State, supra, at page 564. The appearance of any person before the grand jury attempting to influence the jury is not permissible. Brack v. Wells, 184 Md. 86, 95. It has been held that one who is being investigated by the grand jury has no right, constitutional or otherwise, to appear before that body. Duke v. United States, 90 F. 2d 840 (4th Cir. 1937) cert. denied 302 U. S. 685, rehearing denied 302 U. S. 775, (cited as authority in Brack v. Wells, supra) ; United States v. Thompson, 144 F. 2d 604 (2nd Cir. 1944) opinions by L. Hand; J. cert. denied 323 U. S. 790. In Hitzelberger v. State, 173 Md. 435 it was held that one under investigation who attempts to influence a member of a grand jury to present certain evidence in favor of that person may be held in contempt. It has also been held that one who merely solicits the grand jury to allow him to testify in his own defense may be held in contempt. Commonwealth v. McNary, 246 Mass. 46, 140 N. E. 255, 256 (cited with approval of Hitzelberger v. State, supra.)”

We are not persuaded by the authorities relied on by the appellant to depart from our holding in Watson that neither the accused nor counsel representing him have any right to be present during the proceedings before the grand jury. Because of the nature of the functions of the grand jury, the cases cited by the appellant in support of his contention are not in point and are not apposite by analogy. They conclude that assistance of counsel may, under certain circumstances, be necessary to assure certain rights of an accused, at a preliminary hearing or arraignment, at a lineup, at the obtaining of a confession, and at the trial. Nor do we construe Pointer v. Texas, 380 U. S. 400, where the Court held that the right of the accused to confront the witnesses against him was denied where a transcript of testimony at a preliminary hearing, at which there was no opportunity for cross-examination, was admitted in evidence at the trial on the merits, to compel such confrontation of witnesses in grand jury proceedings.

The appellant also alleges that, because prior to conviction, an accused who is charged with an offense, the maximum punishment for which is capital, is not entitled to bail “as a matter of law” (Md. Rules, 777 a), the action of the grand jury in indicting him deprived him of his liberty without due process of law. But the rule continues: “In a capital case the accused may be admitted to bail in the discretion of the court.” We see no merit in this allegation. The question presented by a denial of bail in such case is one of the exercise of the discretionary power of the court and there is no allegation here that the discretion was abused. See Fisher v. Ball, 212 Md. 517.

We find no error in the denial to dismiss the indictments.

II

Molly Manigold testified that about 11:00 P.M. on the evening of September 23, 1966 while she was walking from her brother’s house at 1010 Mosher Street to the house of another brother at 1207 Winchester Street, “somebody grabbed me around my neck * * * and pulled me backwards and twisted my neck and told me if I holler, say T kill you.’ ” She was able to see her assailant — “I’ll never forget him”—and identified him as the appellant. She asked him why he was doing this to her, and he said, “Shut up bitch,” and hit her in her face with his fist. He dragged her down the alley and threw her down, “beating my face from side to side.” He “straightened” her with his leg across her and had intercourse, tearing her clothes “off her.” He said, “it’s women like you I like to hurt.” She was “halfway out and he did what he wanted to do * * * He put his penis in me.” He asked her if she had any money and when she replied that she did he took “about a dollar and something” from her pocket while he was still “sitting on top” of her. He told her he was going to kill her and “he started beating me in my face again and I could feel my face swelling up all over.” He finally permitted her to get up but had her arm twisted around her back. He pushed her in this manner to her brother’s house and she “fell in the door,” and hollered for help. She was then “in shock” and “all I know is waking up down at University Hospital, the doctors talking to me.” The victim’s brother, Charles Mason, testified that he tvas sitting in his house when the “outside door, slung open” and his sister hollered, “Help.” He ran out the door and saw the appellant running ■“eastward on Winchester towards the alley.” Mason ran after the appellant and caught him near the entrance to the alley. The appellant put his hand “into his sweater” and Mason hit him, “knocked him between the white fence and the brick wall.” He brought him back to the house and held him until the police, whom neighbors had called, arrived. The police officer who responded to the call testified that when he arrived on the scene Mason was holding the appellant. Molly Manigold came out of the house and pointed to the appellant saying, “That’s the man that beat me up and raped me.” She showed the officer where the assault occurred and the police found her shoe about “a quarter way down the alley” and her black wig about “three quarters of the way down the alley.” He also found some of her underclothing—part of a slip and part of a pair of panties—in the area of the attack. The items were admitted in evidence. A police physician testified that he had examined Molly Manigold at 1:40 A.M. on September 24, 1966. His examination “showed both eyes blackened, with a huge hematoma beneath the left eye with splitting of the surface skin. Eyes were divergent, pointing out in both directions. Pupils were small and equal. Three vertical splits beneath the upper lip, the longest three-quarters of an inch, the other two a half inch. The lower lip was bruised and swollen. Blood was caked at the right nostril. On her legs there was an abrasion of the right knee, multiple abrasions of both feet, heels, inner and outer surfaces. Her eyes were not tracking together. They did not go from side to side together. Seemed to wander off. An X-ray of the head was recommended to the family. The body also showed that she had had a bowel movement. There was feces over the buttocks and thighs. The external genitalia was normal, female. The hymen showed an old, complete destruction. Bacterial exudate was negative. The outlet was paros—that means she has had children—relaxed. No tears, abrasions or cuts. The vagina, a small amount of mucoid material. The cervix was normal in appearance. Discharge was negative. A slide which I made was positive for non-motile spermatozoa. Diagnosis was multiple facial injuries, multiple abrasions of extremities, evidence of penetration and ejaculation.” The only witness called by the defense was the appellant’s mother who testified that the appellant had a hernia operation in 1966 and had complained that he seemed to be “losing his nature,” both before and after the operation.

We have no difficulty in determining that the court below had sufficient evidence from which it could fairly be convinced beyond a reasonable doubt of the appellant’s guilt both as to the rape and the robbery as charged. Scott v. State, 2 Md. App. 709; Lucas v. State, 2 Md. App. 590; McEntire v. State, 2 Md. App. 449; McFadden v. State, 1 Md. App. 511. The appellant complains that the testimony of Molly Manigold was so-inconsistent that it should not have been accepted by the trial court. Kucharczyk v. State, 235 Md. 334, held that where the sole witness’ testimony was so contradictory as to have no probative force, the trier of facts could not speculate about it and select one or another contradictory statements as the basis of the verdict. That principle has no application here. At most Molly Manigold’s testimony was contradictory only in minor details, going only to its weight, and her testimony was corroborated in substantial part by other evidence. There was no need for the trial court to speculate in arriving at its verdicts. Bell v. State, 2 Md. App. 471, 472. The weight of the evidence and the credibility of the witnesses was for the trial judge to determine. Dunlap v. State, 1 Md. App. 444; Sadler v. State, 1 Md. App. 383. The judgments of the lower court on the evidence were not clearly erroneous and we shall not set them aside. Md. Rules, 1086; Hutchinson v. State, 1 Md. App. 362.

Ill

The appellant alleges that after the trial he learned that his pants had been examined at the crime laboratory of the Baltimore City Police Department and that the examination showed they “were negative for sperm.” He claims that the report oí the examination was “known to the State at the time of his trial.” He contends that this was a suppression of evidence by the State and denied him due process of law. The record before us is silent as to an examination of the pants. It does not show if, in fact, such an examination was made, or, assuming it was made, what it disclosed or whether the appellant had knowledge of it prior to trial or could reasonably have learned of it. The contention is not available to the appellant on direct appeal, as on the state of the record there is nothing for this court to review. Not being tried and decided by the lower court, the point is not properly before us. Md. Rules, 1085.

Judgments affirmed.

      . The appellant filed pleas of not guilty and not guilty by rea•son of insanity at the time of the commission of the offense and at the time of the trial. By order of the lower court he was examined -and evaluated at Clifton T. Perkins State Hospital and a report was submitted by the superintendent of that institution. The issue ■of sanity was determined preliminarily by the court after hearing "testimony of a staff psychiatrist of Clifton T. Perkins State Hospital. The court found that the appellant was legally sane at the "time of the commission of the offense and sane at the time of the "trial. Those findings are not contested on appeal.

      . In accord, see Allred, v. State, 387 So. 2d 28 (Miss. 1966); U. S. ex rel. Wheeler v. Flood, 269 F. Supp. 194 (E. D. N. Y. 1967); United States v. Elksnis, 259 F. Supp. 236 (S. D. N. Y. 1966); United States v. Rosen, 259 F. Supp. 942 (S. D. N. Y. 1966); People v. Dupree, 319 P. 2d 39 (Cal. App. 1957). See also 38 C.J.S. §39, p. 1038. In the State of New York, by statute, one under investigation is permitted to be present under some circumstances. See People v. Lazar, 272 N. Y. S. 2d 898 (1966). In Connecticut the practice is to allow one being investigated to be present, but he is not permitted to be accompanied by counsel. State v. Stallings, 224 A. 2d 718 (Conn. 1966); State v. Guay, 196 A. 2d 599 (Superior Court of Conn., Hartford City 1963).

      . Hamilton v. Alabama, 368 U. S. 52; White v. Maryland, 373 U. S. 59; Powell v. Alabama, 287 U. S. 45.

      . United States v. Wade, 388 U. S. 218.

        . Escobedo v. Illinois, 378 U. S. 478; Miranda v. Arizona, 384 U. S. 436; Massiah v. United States, 377 U. S. 201.

      . Gideon v. Wainwright, 372 U. S. 335.

      . We are aware that in Dennis v. United States, 86 S. Ct. 1840, the Court held that the petitioners were entitled under the circumstances of that case, to examine the grand jury minutes relating to trial testimony of four government witnesses, and to do so while those witnesses were available for cross-examination. But in so holding it recognized the “long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts” and “when disclosure is permitted, it is to be done ‘discretely and limitedly,’ ” stating that “upon a showing of ‘particularized need’ defense counsel might have access to relevant portions of the grand jury testimony of a trial witness,” at pages 1848-1849. We think it clear that Dennis does not go so far as to compel the appearance of an accused and his counsel before the grand jury.

      . The physician explained that “non-motile spermatozoa means spermatozoa still maintains its normal shape but it is dead. This would indicate it has been over two hours, but less than eight hours since the time spermatozoa was deposited in the vagina.”

      . Giles v. Maryland, 87 S. Ct. 793, and Brady v. Maryland, 83 S. Ct. 1194, relied on by the appellant, are not contrary to our holding that under the circumstances here present, the matter cannot be determined on direct appeal. However, for a discussion of the rules of law pertaining to suppression of evidence, when properly raised, see, in addition to Giles and Brady, supra, Tucker v. Warden, 243 Md. 331; Farrow v. Warden, S41 Md. 724; Johns v. Warden, 240 Md. 209; State v. Tull, 240 Md. 49; Hyde v. Warden, 235 Md. 641; Dyson v. Warden, 233 Md. 630; McCoy v. Warden, 1 Md. App. 108; Ross v. Warden, 1 Md. App. 46.