Boone v. State

O’Donnell, J., delivered the opinion of the Court. Appellant, Roosevelt “Zip” Boone, together with Abraham Goode, known as “Tomboy,” Alphonso Obadiah Craft, and James Kitt, were jointly indicted on January 29, 1965, by the Baltimore City Grand Jury, charged with armed robbery and with murder in the first degree, as a result of the hold-up of Burman’s Cafe and the killing of Charles O. Hazard, the bartender, on the early morning of January 2, 1965. Following the decision in Schowgurow v. State, 240 Md. 121 , 213 A. 2d 475 (1965) and under the holdings in Smith v. State, 240 Md. 464 , 214 A. 2d 563 (1965), he elected to have those indictments declared invalid and was re-presented and re-indicted on November 2, 1965, with the same co-defendants for the armed robbery and, with the exception of Abraham Goode, for murder in the first degree (in the interval, in a separate proceeding, Goode had pleaded guilty to murder in the second ⁸⁶ degree and had been sentenced). Appellant requested a change of venue and an order was signed in the Criminal Court of Baltimore removing the case to the Circuit Court for Baltimore County for trial.

A Motion for Discovery and the Answer thereto filed in the earlier indictments were re-filed on March 4, 1966. The Appellant also filed a Motion to Dismiss the Indictments, alleging that his arrest had been illegal, that “all steps which followed the arrest were illegal,” and alleging that he had been placed in double jeopardy. In addition, he filed a Motion to Suppress Evidence alleging an illegal arrest, that the arrest warrant was invalid, that he was not advised of his right to remain silent, nor of his right to counsel, that he was denied counsel prior to interrogation, and that the statement was not freely and voluntarily given; he moved that the statement be suppressed. Prior to trial, Judge John E. Raine, Jr., denied the Motion to Dismiss on the ground of double jeopardy and, after conducting a pre-trial hearing, denied the Motion to Suppress, ruling that the arrest was lawful and that the statement was admissible.

After a jury trial, presided over by Judge Raine, Appellant was convicted on the first and second counts of the armed robbery Indictment and was convicted of murder in the first degree. His Motion for a New Trial was granted on the murder conviction. From the sentence imposed (18 years in the Maryland Penitentiary, reduced to 17 years on April 1, 1966) on the armed robbery conviction, he appeals. Counsel for Appellant, in his Brief and in argument, contends that the trial court committed error (1) by admitting the statement into evidence, (2) by refusing to allow Appellant to summons and call certain witnesses, (3) in permitting the State to re-open the testimony on the Motion to Suppress after it had rested, (4) in permitting the State to interrogate Appellant as to whether or not he had been previously convicted of crime, and (5) in allowing leading questions “on crucial issues” in the trial.

His counsel also (6) challenges the sufficiency of the evidence to sustain the conviction and contends (7) that ⁸⁷ the verdict of the jury of “guilty” on the first and second counts of the Indictment was improper. I MOTION TO SUPPRESS Appellant’s first three (3) contentions, all relating to alleged errors on the part of the trial court, in connection with its rulings on the Motion to Suppress his statement, may be considered together. Et. Cadden of the Homicide Squad of the Baltimore City Police Department, testified that on January 7, 1965, he received information from Sgt.

Callahan that “Tomboy” Goode, who was in custody, had in a written statement admitted his participation in the robbery and homicide, had named Boone as one of his accomplices and had identified his photograph. Upon this information, a warrant was issued for Appellant’s arrest, but he was “at large” until brought to Police Headquarters about 11:00 P.M. on January 20, 1965, after having surrendered to Sgt. Watkins. Lt.

Cadden testified further that the written statement was given within 20 minutes after Boone arrived at Police Headquarters and after he had told the officers about the case; that Boone was admonished that he did not have to give a statement, did not have to discuss the matter at all, that no request, nor any mention of, an attorney w'as made by him; that both he and Sgt. Watkins were present during the entire interrogation; that no threats were made to him, no force or violence was used or exhibited; that Boone was “eager to discuss the case” and that after he typed the six (6) page statement, verbatim as Boone told it, he read it, signed it, initialed each page and made initialed corrections in it. He testified that Sgt. Watkins made no statement at the interrogation that either Boone, or his wife, had advised him that they had retained an attorney.

Appellant, 36 years of age, who had completed third-year high school, on the Motion testified that “he was in big trouble,” knew that a warrant was outstanding for his arrest, but being afraid of “what might happen to him at the hands of the police” had attempted, by seven or eight phone calls, to contact ⁸⁸ Sgt. Watkins (of his own race) on January 20th, so that he might surrender to him. He requested Sgt. Watkins to come alone to his mother’s home (she did not wish the neighborhood disturbed by a number of policemen at her home) and Sgt.

Watkins assured him and the family that no harm would come to him at the hands of the police and that he would be with him while he was being interrogated. He contended that enroute to the Police Station in the Sergeant’s private car, he told the Sergeant that he was “submitting to the warrant, but wouldn’t say anything until his lawyer came,” that the Sergeant told him he didn’t need a lawyer, that no one would mistreat him and advised him not to say anything at the interrogation unless Watkins was present. He further stated that during the ride, in the Sergeant’s presence, his wife stated that “she would call his lawyer.” He acknowledged that notwithstanding his self-serving statement that “he wouldn’t say anything until his lawyer came,” he had told Sgt. Watkins substantially the same things as were recorded in the statement.

He testified that while in the cell in the Police Station he requested permission about 9:35 P.M. of a turnkey “to make a phone call,” was told that the Desk Sergeant would be asked, but never again saw the turnkey or the Desk Sergeant until he was being transported to Headquarters. He later testified that he had told the turnkey he wanted “to phone his lawyer,” but had been advised that he was “not permitted to make a phone call.” He testified that when he entered the Interrogation Room at Headquarters, one of the nine (9) officers present was “beating a blackjack in his hand,” that another “slammed a chair against the wall,” and that he had told an unidentified Lieutenant (not Lt. Cadden) that he was “waiting for his lawyer before he would discuss the case with them.” He denied that he was advised of his right to remain silent, or that he was not required to give evidence against himself, nor that what he said would be used against him, although he knew that this was “standing law.” He contended that although reluctant to give a statement, he “submitted” because of the general atmosphere in the room where the police appeared hostile. He admitted ⁸⁹ signing the statement but denied having read it.

He explained his initials and corrections “because he was told to do so.” On cross-examination he admitted that he knew he was entitled to consult with an attorney and knew he had a right to remain silent and acknowledged that the statement was made “not because he didn’t have a lawyer, but because of threats of the officers.” He admitted that he believed that his wife had contacted an attorney who was enroute and knew that he could have waited for his attendance but contended that he “believed he may have been subject to violence — that the officers by their very presence presented a definite threat to him.” Although he admitted that he knew he was to be questioned about the robbery at Burman’s Cafe and had been assured that no harm would come to him when he surrendered to Sgt. Watkins, he “didn’t want to tell the police what he knew.” His wife testified that while in Sgt. Watkin’s car, Boone had asked her to “call Lawyer Brager” but that she had been unable to contact him until the following day. (Between January 2nd, the date of the crime, and his surrender to Sgt.

Watkins on January 20th, no attorney had been retained, nor had the Appellant discussed the case with any attorney. The day after the statement was given an attorney did visit the Appellant at Police Headquarters, but never was engaged by him.) Lt. Manuel, Sgt. Callahan and Officer Rout were called as witnesses by Appellant and testified that Goode had been arrested at Crownsville State Hospital only after they had been assured by its Clinical Director that his condition was normal and that he showed no ill effects from any (narcotics) withdrawal symptoms.

It was elicited that about 4 hours after Goode had given his statement concerning his participation and that of the Appellant in the robbery and homicide, he was taken to Mercy Hospital for treatment after he complained of feeling ill. Appellant at that stage advised the trial court that although Goode was not in attendance, he wanted to question him and question the police officers who had taken him to Crownsville Hospital. No summonses had been issued by Appellant for any of these witnesses and the trial court denied a request for a continuance to permit them to be summoned and questioned. No proffer was made by Appellant as to the nature of the testi ⁹⁰ mony he expected to elicit from these witnesses, nor that their evidence, was material and relevant, nor that he had taken any steps to secure their attendance.

Sgt. Callahan, in rebuttal for the prosecution, testified that he was present during the entire interrogation; he denied that any threats or promises were made to Boone, denied that anyone had “whipped a blackjack in his hand,” denied that anyone had “banged a chair against the wall” to frighten or threaten him, that it was not necessary to question him at any length since he was “anxious to tell us all about it,” and further testified that Boone had read over the entire typed statement. When the State indicated that it had rested its case on the Motion to Suppress, counsel for Appellant (citing Escobedo v. Illinois, 378 U. S. 478 , 84 S. Ct. 1758 , 12 L. Ed. 2d 977 (1964), Streams v. State, 238 Md. 278 , 208 A. 2d 614 (1965), and Thiess v. State, 235 Md. 541 , 201 A. 2d 790 (1964)) contended that since neither Sgt. Watkins nor the turnkey had been called as witnesses, that the State had failed to rebut Appellant’s testimony, had failed to meet its burden of proof and that the statement should be ruled inadmissible.

After a colloquy between the trial court and counsel on the holdings in Hyde v. State ( 240 Md. 661 , 215 A. 2d 145 (1965)) and DeToro v. Pepersack ( 222 F. Supp. 621 , Affm’d. 332 F. 2d 341 ) the State requested permission to re-open the case on the Motion in order that Sgt. Watkins and the turnkey might testify. Appellant’s counsel objected, contending that Rule 725 of the Maryland Rules did not provide for the re-opening of evidence in connection with such a Motion. Judge Raine overruled the objection stating: “that miscarriages of justice work both ways; the State has as much of an interest in the litigation as the Defendant,” and pointing out the broad discretion vested in the trial court, stated that he did not believe it would be an abuse of that discretion to grant permission to re-open the testimony over the objection of the defendant.

Sgt. Watkins then testified that Boone, known to him for a number of years, had made numerous attempts to phone him on January 20th and when finally contacted, stated that he was “afraid that if he stayed on the street he would be shot by a ⁹¹ policeman;” that he wanted to turn himself in. Watkins assured him, and his family, that he would not be mistreated or manhandled by the police; that on the ride to the Police Station, Boone told him about the hold-up of Burman’s Cafe and about the original plan to rob “Melvin,” who was suspected of dealing in narcotics. Boone told him that he wanted to tell what he knew and “get it off my mind.” Sgt.

Watkins told him that after he was taken to the Northern Police Station he would be transferred to Detective Headquarters, but that he would remain with him during any interrogation. He denied that there had been any conversation between Boone and his wife about contacting a lawyer; that no such request was made, while riding in the car, while he engaged in “small talk” with Boone for a 10 or IS minute interval at the Northern Police Station, nor while at Police Headquarters. Sgt. Watkins did accompany Boone to the interrogation and did remain during the entire questioning; he denied that anybody slapped blackjacks in their hands or that any chairs were hit against the wall; he stated that Boone was willing to. tell his side of the story.

Officer Huster, the turnkey on duty at the Northern Police Station until 10 :15 p.m. on January 20th, testified that he did not remember Boone, but his records showed that he had been placed in a cell at 9:50 p.m. and was transferred to Police Headquarters at 11:00 p.m. and that there was no record of him having made a telephone call. He stated that if Boone had made such a request, he would have been allowed to make the call, but that he had no recollection of any such request. Recalled as a witness, Appellant acknowledged that during his conversation with Sgt. Watkins, while in the Police Station cell, he had said nothing to him about requesting to make a phone call, that thereafter “his mind began to focus on his position” and he then made his request of the turnkey.

Judge Raine ruled that Boone’s arrest was lawful, finding that the Police had knowledge that a felony had been committed and had ample probable cause to believe that he had been a perpetrator and that although he could have been arrested without a warrant, he had been arrested on a valid one. ⁹² In his oral opinion denying the Motion to Suppress the Statement and ruling it admissible, he found as facts, from the credible evidence that Boone had not told Sgt. Watkins that he would not give a statement until his lawyer appeared, that Sgt. Watkins did not tell him that he did not need a lawyer, and that no request for an attorney had been made by him. He found that Appellant’s testimony on this point was not only not believable but was inconsistent with his repeated efforts to surrender to Sgt.

Watkins and was inconsistent with the verbal account given to the Sergeant, enroute to the Police Station, about his participation in the crime. He pointed out that if there had been any thought or effort on the part of Boone to secure a lawyer, he would have communicated that request to Watkins, the only police officer he was prepared to trust. Judge Raine further found as facts from the credible evidence that there had been no “slapping of backjacks” or shoving of chairs into the wall” in the environment in which Boone was being interrogated, that Sgt. Watkins, in whose hands he had placed himself and who had assured him that no harm would come to him at the hands of the police, was there present to prevent such an environment; that Boone’s desire to surrender and to try to exculpate himself was consistent with the testimony of the officers who testified that Boone had been “eager to talk about the case.” In distinguishing the facts in the case from those in Thiess , he held that it would impose upon the State a heavier burden than was contemplated by Escobedo to hold as a matter of law that a confession was not voluntarily given merely because a turnkey was unable to categorically deny Boone’s bald statement that he had requested to use the phone.

The Judge further found from the credible evidence that the statement given by Boone was recorded by Lt. Cadden as recounted and had been read, initialed and signed by him; he pointed out places in the statement where corrections had been made and initialed that could only have been made if Boone had read it. From the “totality of the circumstances” the trial court concluded that Boone had been advised of his right to remain silent, that he was willing to talk voluntarily and quickly, that ⁹³ there was no prolonged interrogation and that there was no evidence of coercion to overcome his will to remain silent. The Appellant’s statement was admitted into evidence.

(1) Admissibility of Statement Appellant’s arrest was lawful. The officers knew that an armed robbery and homicide had been perpetrated. After Goode had given his statement to Lt. Callahan, he had probable cause to believe that Boone was Goode’s confederate.

Information thus received from a co-defendant can afford a basis for “probable cause” to believe that the person so named was a confederate in the perpetration of the crime. Mefford & Blackburn v. State, 235 Md. 497, 511 , 201 A. 2d 824 (1964), cert. denied 380 U. S. 937 . Assuming arguendo that Appellant had been illegally arrested, that fact alone would not render inadmissible a statement which was otherwise shown to have been freely and voluntarily given. Prescoe v. State, 231 Md. 486 , 191 A. 2d 226 (1963) ; Stewart v. State, 232 Md. 318 , 193 A. 2d 40 (1963) ; Peal v. State, 232 Md. 329 , 193 A. 2d 53 (1963); Dailey v. State, 234 Md. 325 , 199 A. 2d 211 (1964); Mefford & Blackburn v. State, supra; McChan v. State, 238 Md. 149 , 207 A. 2d 632 (1965); Taylor v. State, 238 Md. 424 , 209 A. 2d 595 (1965) ; and Dailey v. State, 239 Md. 596 , 212 A. 2d 257 (1965), cert. denied 384 U. S. 913 .

Since Appellant’s trial had been concluded prior to June 13, 1966, the standards enunciated on that date by the United States Supreme Court in Miranda v. Arizona, 384 U. S. 436 , 16 L. Ed. 2d 694 , are here inapplicable. See Johnson & Cassidy v. New Jersey, 384 U. S. 719 , 86 S. Ct. 1772 , 34 L. W. 4593 (1966) ; Westfall v. State, 243 Md. 413 , 221 A. 2d 646 (1966); Johnson v. Warden, 244 Md. 384 , 223 A. 2d 584 (1966) ; Campbell v. State, 244 Md. 363 , 223 A. 2d 604 (1966) ; Crumb v. State, 1 Md. App. 98 , 227 A. 2d 369 (1967); Cooper v. State, 1 Md. App. 190 , 228 A. 2d 840 (1967). In Jenkins v. State, 238 Md. 451 , 209 A. 2d 616 (1964), the Court stated, at p. 460: “* * * we read Escobedo v. Illinois, 378 U. S. 478, 491 , 12 E. Ed. 2d 977, to hold no more than that where the suspect * * has requested and been denied ⁹⁴ an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent * * *’ the accused has been denied assistance of counsel and his statement made without the advice of counsel is inadmissible against him at his trial. * * *” (Italics supplied) See also Harriday v. State, 238 Md. 75, 79 , 207 A. 2d 629 , where the court said, “We do not think Bscobedo controlling, since the appellant did not ask for counsel either before or during the making of his confession.” In Crowe & Williston v. State, 240 Md. 144, 213 A. 2d 558 (1965) the Court of Appeals said, at pg. 150: “* * * This Court has repeatedly held that where there is no evidence that a request for a lawyer is made, the landmark case of Escobedo v. Illinois, 378 U. S. 478 , 12 L. Ed. 2d 977 , does not control, and if the confession is voluntary it may be admitted into evidence. Johnson v. State, 238 Md. 140 , 207 A. 2d 643 ; Swartz v. State, 237 Md. 263, 265 , 205 A. 2d 803 ; Anderson v. State, 237 Md. 45 , 205 A. 2d 281 ; Mefford & Blackburn v. State, supra; Green v. State, 236 Md. 334 , 203 A. 2d 870 .” See also Ferrell v. Warden, 241 Md. 432 , 216 A. 2d 740 (1965).

For the holdings in Bscobedo to be applicable to this case it was necessary for the trial judge to be persuaded from the credible evidence that Boone had in fact made a request to contact a lawyer and had been denied and that the police had not effectively warned him of his right to remain silent. Judge Raine found to the contrary. See Mefford & Blackburn v. State, supra. In Edwards v. State, 194 Md. 387 , 71 A. 2d 487 (1949), the Court of Appeals said at p. 393: “* * * Where an attempt is made to offer a confession in evidence, and the accused says that the confession made by him was not obtained voluntarily, but because of some threats or persuasions, it is then the ⁹⁵ duty of the trial court to determine whether the testimony of the accused or the testimony of the officers who testified that no such threats or persuasions were made, is to be given the greater weight.

This determination depends upon whether the State has met the burden of proof of establishing that the confession was freely and voluntarily made. We agree that the trial court in view of the denials by the officers, was justified in holding that the confession was not obtained because of threats made by the officers. * * *” In Grammer v. State, 203 Md. 200 , 100 A. 2d 257 (1953), the Court of Appeals held, at pgs. 218-19: “* * * Where there is conflicting testimony as to whether a confession was voluntary, the conflict must be resolved by the trial court and its determination is not reviewable on appeal unless there was a manifest abuse of discretion. Linkins v. State, supra; White v. State, 201 Md. 489, 492-493 , 94 A. 2d 447, 449 ; Edwards v. State, 194 Md. 387 . In almost every serious criminal case, when a confession is offered in evidence, its rejection is sought.

The accused is almost always ready to say that his incriminating statement was not obtained voluntarily but by some form of persuasion or coercion. The trial judge, who has the opportunity to see and hear the witnesses on the stand, must then determine where the truth lies. Unless there has been plain error in his decision, we will not disturb his findings. Peters and Demby v. State, 187 Md. 7 ; and Jones v. State, 188 Md. 263, 270-271 .” Because the Appellant testified that he had made requests for a lawyer and that the police had created an atmosphere of hostility — in slapping blackjacks and slamming chairs — this did not necessarily make these facts so.

The trial judge was not required to believe his testimony and the credibility of all the witnesses on the issue of admissibility of the statement was primarily for his determination. Tate v. State, 236 Md. 312 , 203 A. 2d 882 (1964). ⁹⁶ In Crowe & Williston v. State, supra, the Court said at p. 149: “We find no merit in Williston’s first contention that the confession was a product of coercion and was thus inadmissible against him. The trial judge heard, the testimony of Williston, Sergeant Holland, and of the other officers who testified, as to the voluntariness of the statement. He was in the best position to judge the credibility of the witnesses. * * * On numerous occasions this Court has held that where the trial judge sits without a jury, his determination as to whether a statement is freely and voluntarily given will not be disturbed on appeal in the absence of a showing of abuse of discretion.

Oakley, Etc. v. State, 238 Md. 48 , 207 A. 2d 472 ; Abbott v. State, 231 Md. 462 , 190 A. 2d 797 ; Bryant v. State, 229 Md. 531 , 185 A. 2d 190 . Cf. Md. Rule 886 a. We find no such abuse of discretion in the instant case.

The court was clearly justified in its determination that the State had met its burden of proof as to the voluntariness of the statement by introducing 'believable, persuasive contradiction’ of each claim of threat or coercion. Mefford and Blackburn v. State, 235 Md. 497 , 201 A. 2d 824 ; Oakley, Etc. v. State, supra.” Judge Raine saw and heard the witnesses who testified before him in connection with the admissibility of the statement; the credibility of the conflicting evidence was a matter for him to decide. Ralph v. State, 226 Md. 480, 487 , 174 A. 2d 163 (1961) ; Jones v. State, 229 Md. 165, 174 , 182 A. 2d 784 (1962) . Where the trial judge believes that a confession was freely and voluntarily made, his finding will not be disturbed on appeal unless there was a clear abuse of discretion.

Abbott v. State, 231 Md. 462 , 190 A. 2d 797 (1963); McChan v. State, supra, at 159. We agree that the trial court, in view of the testimony of the officers, was justified upon what he found to be the credible, persuasive evidence in holding that the statement was not ob ⁹⁷ tained because of any implied threats made by the officers nor was it obtained after Appellant requested and was denied counsel, and was given after he had been advised of bis right to remain silent. There was no error in the ruling by the trial court that the prosecution had sustained the burden of proving that the Appellant’s statement was freely and voluntarily given and in admitting it into evidence. Bryant v. State, 229 Md. 531, 536 , 185 A. 2d 190 (1962) ; Mundell v. State, 244 Md. 91, 93 , 223 A. 2d 184 (1966).

(2) Request to Summons Witnesses When Appellant stated to the court that he wanted to interrogate the police officers who had taken Goode to the hospital and wanted to question Goode pertaining to the information he had given the police, he knew Goode was not then available in court. The State opposed any continuance to permit the summoning of such witnesses, pointing out that its entire file had been opened to defense counsel. The trial court refused the continuance, noting that the Appellant had not issued summonses for any such witnesses. In Jackson v. State, 214 Md. 454 , 135 A. 2d 638 (1957) the Court of Appeals held at p. 459: “* * * ordinarily matters of continuance are within the sound discretion of the trial judges; and their rulings thereon should not be disturbed, unless there be a showing that there was an abuse of this discretion, which was prejudicial to the party requesting the continuance.

To show such an abuse of discretion and prejudice for failure to continue a case because of the absence of witnesses, the party requesting the continuance should show: that he had a reasonable expectation of securing the evidence of the absent witness or witnesses within some reasonable time; that the evidence was competent and material; and he believed that the case could not be fairly tried without it; and that he had made diligent and proper efforts to secure the evidence. Harris v. State, 141 Md. 526, 530 , 119 A. 154 ; Laque v. State, 207 Md. 242, 254, 255 , 113 A. 2d 893 . Cf. Plank v. Summers, 205 Md. 598, 109 A. 2d * * *» ⁹⁸ In McKenzie v. State, 236 Md. 597 , 204 A. 2d 678 (1964) the Court said at p. 601: “We have held repeatedly that the denial of a request for a continuance is within the sound discretion of the trial court.

We conclude that under the circumstances there was no abuse of this discretion. * * * As to the claim that he needed time to summon witnesses, even if we disregard the month which had elapsed after arraignment we find no basis for continuance since he did not make any proffer regarding the materiality of their testimony, their names or their availability. See Mazer v. State, 231 Md. 40, 46 , 188 A. 2d 552 (1963); Stansbury v. State, 218 Md. 255, 262 , 146 A. 2d 17 (1958); Jackson v. State, 214 Md. 454 , 135 A. 2d 638 (1957). * * *” See also Bryant v. State, supra, where no effort had been made by the defendant to subpoena the witnesses he requested or to inform the State of his inability to find the absent witness. Here, Appellant had ample time to prepare for his defense and to direct the issuance of summonses for all those witnesses he intended to produce in connection with his Motion to Suppress. Other than Goode, the witnesses were unnamed, there was no showing that he had made proper efforts to secure their attendance; no proffer was made of the nature of their testimony; nor was there any showing of the competency or relevancy of their testimony to the issue then before the court.

We find that there was no abuse of discretion on the part of the trial judge in denying a continuance for the production of witnesses under the circumstances here shown. (3) Re-Opening of Evidence Appellant alleges error when the trial court permitted the prosecution to re-open its case in connection with the admissibility of the statement and in permitting Sgt. Watkins and Officer Huster to then testify. The burden was upon the State, on the issue of suppression ⁹⁹ of the statement, to show that it had been freely and voluntarily given.

Jackson v. State, 209 Md. 390, 394 , 121 A. 2d 242 (1956); Mercer v. State, 237 Md. 479, 483, 206 A. 2d 797 (1965); Oakley and Summerville v. State, 238 Md. 48, 53 , 207 A. 2d 472 (1965), cert. denied 384 U. S. 1021 ; and Burks v. State, 1 Md. App. 81, 84 , 227 A. 2d 355 (1967). Having testified that he had requested permission of the turnkey to telephone an attorney and that Sgt. Watkins had heard his wife tell him that she was going to call an attorney, Appellant undertook, under the holdings in Thiess v. State, supra, and Streams v. State, supra, to stand technically on the fact that this evidence from him had not been rebutted and refuted and that his statement must thus be suppressed. The Maryland cases hold that it is within the discretion of the trial court whether a case may be re-opened to permit additional testimony and from its action in granting or rejecting the application no appeal will generally lie.

Brown v. Bendix Aviation Corp., 187 Md. 613, 620 , 51 A. 2d 292 (1946). Compare Sanders v. State, 1 Md. App. 630 . In East Balto. Transfer Co. v. Goeb, 140 Md. 534 , 118 A. 74 (1922), the case was allowed to be re-opened for the purpose of allowing the plaintiff to prove the identity of the driver of the truck which caused the accident and to prove that the truck belonged to the defendant-appellant.

The court, in its opinion, said at p. 537: “The plaintiff had failed to offer in the course of the trial the necessary evidence for a proper consideration of the case, and it was entirely within the discretion of the court to permit the additional testimony to be introduced. The matter was within the sound discretion of the court below, and its action in this respect is not reviewable by this Court and is no ground for an appeal, (cases cited) ” In Bradford v. Eutaw Savings Bank, 186 Md. 127 , 46 A. 2d 284 (1945), the trial court received testimony on May 24, 1945, and at the close of the evidence indicated there had been no proof sufficient to grant the complainant the relief prayed; the court indicated that it would be desirable to take additional testimony before any action could be taken on the cross-bill filed, and such additional testimony was taken on June 14, 1945, over ¹⁰⁰ the objection of the Appellant. The Court of Appeals, in upholding the action of the lower court, said at p. 131: “* * * The appellants objected to it below and object here, because they say it should have been taken at the first hearing, as the witnesses were then in court and the appellee closed her case without calling them. However, a chancellor has the power to allow defects in proof to be supplied at any time.

Bailey v. Bailey, 186 Md. 76 , 46 A. 2d 275 . Such action is in his discretion and is not subject to review here (Trustees of German Lutheran, etc. v. Heise, 44 Md. 453 ) except where his action is arbitrary, and the rights of some of the parties are improperly affected. When, in the judgment of the chancellor, the ends of justice will be subserved, this court has said that it is his plain duty to allow further proof to come in. Worthington v. Hiss, 70 Md. 172 , 16 A. 534 , 17 A. 1026 .

We find nothing arbitrary in the action of the chancellor herein in this respect.” Although Bradford was an action in equity, and the rule appears to be more liberally applied in such cases, we see no reason why that fact should make the logic of the rule inapplicable here. We have been cited no authority nor do we know of any holding that such discretion as is vested in the trial court should not be equally applicable to the receipt of evidence on a Motion under Rule 725(d) of the Maryland Rules. Here, Judge Raine was conducting a pre-trial evidentiary hearing on the Motion to Suppress; it was his function to ascertain from the credible evidence the fundamental facts upon which his ruling would be based. When, in his judgment, it appeared necessary that additional evidence be considered in order that the ends of justice might be subserved, it was within his discretion to allow further proof to come in.

There is no showing that his action was arbitrary nor that his discretion was abused. See Schroder v. State, 206 Md. 261, 265 , 111 A. 2d 587 (1955) and Willey v. Glass, 242 Md. 156, 163 , 218 A. 2d 212 (1965). ¹⁰¹ II EXAMINATION OE WITNESSES Appellant’s fourth and fifth contentions, relating as they do to questions directed to witnesses, may similarly be considered together. (4) Cross-Examination about Convictions Although the trial court sustained Appellant’s objections to questions directed to him as to prior convictions for crime, when he testified on the Motion to Suppress, the court, over his objection, permitted the prosecution to examine him about any prior convictions when he testified before the jury “on the limited issue of the voluntariness of the statement.” He challenges the propriety of such questions and contends that any such inquiry, even if allowable, should have been limited to the bare fact as to whether or not he had been previously convicted of crime and an inquiry as to the nature of his convictions should not have been permitted. After the statement had been ruled admissible in the pretrial hearing, the prosecution, in the presentation of its case before the jury, elicited from Lt.

Cadden and Sgt. Watkins substantially the same evidence on the voluntariness of the statement as they theretofore had given on the Motion. The turnkey’s earlier testimony was, by stipulation, read to the jury. The Appellant was then granted leave to testify before the jury on the limited issue of the voluntariness of his statement; 1 he, his ¹⁰² mother, and sister, substantially repeated their earlier testimony and by stipulation, his wife’s testimony was read to the jury. ¹⁰³ In this State it has been firmly established that in criminal cases where the defendant is a witness in his own behalf, he thereby puts his character in issue and may be asked on cross-examination if he has been convicted of crime.

Niemoth v. State, 160 Md. 544, 556 , 154 A. 66, 71 (1931) ; Burgess v. State, 161 Md. 162, 169 , 155 A. 153 (1931). See also Linkins v. State, 202 Md. 212 , 96 A. 2d 246 (1953) ; Jordan v. State, 219 Md. 36 , 148 A. 2d 292 (1959), cert. denied, 361 U. S. 849 ; Taylor v. State, 226 Md. 561 , 174 A. 2d 573 (1961); Cousins v. State, 230 Md. 2 , 185 A. 2d 488 (1962), Davis v. Warden, Maryland Penitentiary, 235 Md. 637, 639 , 201 A. 2d 672 (1964), Davis v. State, 237 Md. 97 , 205 A. 2d 254 (1964), cert. denied 382 U. S. 945 ; and Mason v. State, 242 Md. 707 , 218 A. 2d 682 (1966). In Davis v. State, supra, the court said at p. 106: “A defendant in a criminal case who voluntarily takes the witness stand in his own behalf thereby subjects himself to the same rules of cross-examination that govern other witnesses, (cases cited) He may properly be cross-examined as to his prior criminal record. (cases cited)” Appellant contends that since he became a witness for the limited purpose of the voluntariness of his statement, he was thus immune to impeachment by any cross-examination concerning prior convictions. ¹⁰⁴ He acknowledged convictions in 1950 for burglary, in 1957 for larceny, in 1959 for robbery and in 1964 for assault.

The trial court then and there did advise the jury that they were to decide the case on the facts and evidence of it and not upon the fact that the defendant may have been previously convicted; that such evidence was not substantive but was admissible solely on the issue of credibility. In Stein v. New York, 346 U. S. 156 , 73 S. Ct. 1077 , 97 L. Ed. 1522 (1953), Appellants attacked the New York procedure under which if a fair question of fact was presented on the issue of voluntariness, the trial court was required to admit the confession and leave to the jury, under proper instructions, the ultimate determination of its voluntariness and also its truthfulness. Appellants further charged that under the procedure in effect they could not take the witness stand to support, with their own