Barnes v. State

Orth, J., delivered the opinion of the Court. The appellants were convicted by a jury in the Circuit Court for Prince George’s County, of breaking a storehouse with the intent to steal goods of the value of $100 or more. They were indicted with another defendant, Warren Christopher Robinson, who was not tried with them nor was he present at the trial. Each appellant was sentenced to imprisonment for a term of five years and appealed from the judgments and sentences.

They raised four contentions: 1) That the evidence was insufficient to sustain the convictions ; 2) that the failure of the State to inform defense counsel of oral statements by the defendant, Robinson, was prejudicial ; 3) that the indictment was not valid; 4) that the admission in evidence of the oral statements of Robinson was prejudicial error. We shall first consider the fourth contention. The oral statements were to the effect that an automobile found at the scene of the crime belonged to Robinson’s sister, that Robinson, the appellants and a fourth man (who was not apprehended) had driven to the scene in the automobile, and that Robinson did ¹²⁵ not know who the fourth man was except that his nickname was Cliff. On direct examination, Detective Frank E. Bishop testified that the statements were made to him by Robinson in the presence of the appellants and they were admitted in evidence over timely objection.

On cross-examination, however, Detective Bishop said, in answer to an inquiry as to where the conversations took place, “It was a continuing conversation at the scene, in my automobile, and my office in Seat Pleasant.” He further testified that although he had made notes of the conversation, the notes were lost or misplaced when his office had been moved. The record indicates that appellants were taken to the police station in one police car and Robinson was taken to the station in Detective Bishop’s car. Testimony proffered by the State is silent as to whether appellants made any direct reply to the statements of Robinson, although there is testimony by one of the police officers that appellant, Burgess, said nothing at the scene. Appellants denied hearing the statements.

The Court of Appeals has held that if a statement is made by another person in the presence of a party to the action, be it civil or criminal, containing assertions of fact which, if true, the party would under all circumstances naturally be expected to deny, his failure to speak is circumstantial evidence that he believes the statements to be true, and his conduct is thus receivable against him as an admission of such belief. Ewell v. State, 228 Md. 615 (1962). In Ewell the admission was made on the open street when none of the defendants were in custody and the defendant, Ewell, could have readily denied participation in the alleged crime. In the instant case, the appellants were in custody and it is thus distinguished from Ewell .

In Miller v. State, 231 Md. 215 (1963), the Court of Appeals made this distinction in holding that the admission of such a