Austin v. State

Per Curiam. At a trial held on February 20-21, 1967, the appellant, John Henry Austin, was convicted of robbery with a deadly weapon ²³³ by a jury in the Criminal Court of Baltimore. He was thereafter sentenced to a term of twenty years in the Maryland Penitentiary. The questions presented on this appeal relate to the propriety of certain of the trial judge’s rulings on discovery matters and evidentiary points.

The evidence adduced at the trial established that on the morning of February 16, 1965, Mrs. Mae Duda was robbed of some $788.00 by two Negro men who had entered her living quarters above the funeral home which she operated in Baltimore City. The faces of both men, one of whom carried a revolver, were covered with blue handkerchiefs, but during a struggle the mask fell from the face of one of them. On March 8, 1965 Mrs. Duda identified a police photograph of the appellant as the man who had become unmasked in the course of the crime. On March 12, 1965 Mrs. Duda again identified the appellant from a police line-up as one of her assailants.

Prior to the trial, appellant filed a motion for discovery requesting, inter alia, the names of witnesses whom the State intended to call to prove its case and the substance of any written or oral statements made by the appellant. The State’s answer to this motion disclosed a list of forty-three prospective State’s -witnesses and further stated that the appellant had made no statements of any kind. Subsequently, on February 17, 1967, three days before trial, the State filed a supplemental answer to appellant’s motion for discovery in which it set forth the substance of certain statements made by the appellant to the victim during the crime. Appellant’s motion to suppress the supplemental answer was denied by the court below.

At the trial Officer Raymond Kraft testified that State’s Exhibit 4, a picture of the appellant, which he recognized by its police identification number, was the same picture as that pointed out by Mrs. Duda on March 8, 1965. On cross-examination, however, defense counsel demonstrated that the picture had, in fact, been taken on March 10, 1965, thus precluding the possibility that Mrs. Duda had ever identified State’s Exhibit 4. In an attempt to clarify the matter, the State called Sergeant Henry Becker of the Police Identification Bureau as a witness, although he had not been included in the list of witnesses furnished to the appellant in the State’s answer to appellant’s mo ²³⁴ tion for discovery. On this ground, appellant objected to his testimony.

The objection was overruled. Sergeant Becker then testified that an identification number on a police photograph is keyed to the subject of the photograph, not the picture itself. He produced two prior photographs of the appellant from police files, each of which bore the same identification number as State’s Exhibit 4. One of these pictures, dated September 9, 1955, was admitted into evidence as State’s Exhibit 6 over appellant’s objection.

In presenting his defense to the charges against him, appellant read into the record the former testimony of John W. Ketcham, since deceased, taken from appellant’s prior trial which had been invalidated as a result of Schowgurow v. State, 240 Md. 121 . At that trial, Ketcham had testified that about the time of the robbery he observed two colored men wearing dark overcoats enter Mrs. Duda’s premises and then depart about twenty minutes later. Ketcham was not, according to his testimony, able to identify either of the men. Appellant then called Sergeant James Gorsuch as a witness.

He testified that immediately after the crime he had interviewed Ketcham and had written a departmental report following the interview. The appellant offered the report as evidence for the purpose of showing that Sergeant Gorsuch had received from Ketcham a description of the two men substantially different from that given the police by Mrs. Duda—a description also different from that of the appellant himself. The trial judge, however, sustained the State’s objection to the proffer, ruling that the report was irrelevant and that appellant could in no way add to or detract from Ketcham’s testimony as given at the prior trial. Appellant’s first contention is that the trial court committed reversible error by denying his motion to suppress the State’s supplemental answer to his motion for discovery, setting forth the substance of an oral statement made by appellant to the victim.

We cannot agree. Appellant’s statement having been made to a victim was