Boone v. State

Orth, J., delivered the majority opinion of the Court. Thompson, J., dissents. Dissenting opinion by Thompson, J., at page 36, infra. The appellant, Abraham Goode, Alphonso Obadiah Craft, and James Kitt were jointly indicted for the murder and robbery ¹⁴ with a deadly weapon of Charles Oliver Hazard by a grand jury for the City of Baltimore on January 29, 1965, prior to the decisions of the Court of Appeals in Schowgurow v. State, 240 Md. 121 and State v. Madison, 240 Md. 265 .

On November 2, 1965, the appellant and the other co-defendants were again indicted for the robbery with a deadly weapon and, with the exception of Goode, for the murder, 1 and the original indictments against the appellant were dismissed upon his motion based on the decision in Schowgurow on November 9, 1965. On February 14, 1966, upon the appellant’s request for a change of venue, his case was removed to the Circuit Court for Baltimore County where trial was held before a jury. The jury returned a verdict of “guilty” on the murder indictment without specifying whether it was murder in the first or second degree. 2 As Art. 27, § 412, Md. Code (1967 Repl. Vol.) provides that on finding a person guilty of murder, the jury shall “* * * ascertain in their verdict whether it be murder in the first or second degree * * the trial court granted the appellant’s motion for a new trial.

The appellant waived a trial by jury at the retrial. The court convicted him of murder in the first degree and sentenced him to imprisonment for the term of his natural life. The State’s case depended in large measure upon the testimony of the co-defendant, Craft, who was granted immunity from prosecution, the cases against him being stetted. Craft had testified for the State in the trial of the co-defendant, Kitt. 3 ¹⁵ When called to the stand in the instant case, however, Craft stated that he had been advised by his attorney that he had been granted immunity in the case of Kitt v. State, for his testimony, “* * * but I was never informed that I would have to testify against Boone in this case, and I informed the State that I didn’t want to testify and I still don’t want to testify in this case.” He indicated that it was his constitutional right not to testify as the testimony might incriminate him but he admitted he testified on “the same charge” in the case against Kitt.

The trial court held that Craft was a compellable witness and directed him to answer questions “pertinent to the issue here involved, namely * * * the indictment of the defendant, Roosevelt Boone.” The appellant contends that the trial court erred in compelling Craft to testify. The contention is fully answered by Butz v. State, 221 Md. 68 , 73-74: “The privilege against self-incrimination is a personal one and must be asserted by the witness, and, although it is by no means certain that Mrs. Curry [the witness] properly claimed the privilege, for the purposes of this case we shall assume that neither the court nor the prosecutor, without conferral of power by statute, could grant her immunity and that she properly claimed the privilege. With both of these assumptions in favor of the appellant, it avails him nothing. The privilege belonged to the witness, not to the defendant.

Roddy v. Finnegan, 43 Md. 490, 502 ; Raymond v. State, 195 Md. 126, 130 , 72 A. 2d 711 . Cf. Richardson v. State, 103 Md. 112, 117 , 63 A. 317 . It is intended for the protection of the witness only and does not involve any right of the parties to litigation (unless, of course, the witness is also the party). 8 Wigmore, Evidence (3rd Ed.), Secs. 2196, 2270.

The testimony given by a witness, who has a proper claim of privilege, is not subject to objection on the ground of privilege at the instance of the defendant, but is competent evidence and admissible against him, if material. Chesapeake Club v. State, 63 Md. 446, 455, 458 . And if a witness makes a claim of privilege and it is ¹⁶ improperly disallowed by the court, it is not reversible error on behalf of a party to the action. Wigmore, ibid., and other authorities named below.

In making the above ruling, we realize that it is not in conformity with one phase of the Chesapeake Club case, just referred to, and, insofar as that case is to be construed as a general holding to the effect that a defendant in a criminal case is entitled to a new trial because privileged, though material, testimony of a witness, who is not a party, has been admitted in evidence, we decline to follow the same.” See also Forrester v. State, 224 Md. 337 . Thus we think that the testimony of Craft was competent evidence and, being clearly material, was admissible against the appellant. Even assuming that the testimony was privileged, which we need not decide, its admission in evidence did not constitute reversible error. The appellant relies on Royal v. State, 236 Md. 443 and Shifflett v. State, 245 Md. 169 , urging that in compelling Craft to testify the trial court did not follow the guidelines as to procedure established by those cases.

We do not find them apposite. In Royal the Court found no impropriety in the trial court not requiring the witnesses called by the defendant to testify in his behalf. The Court said, page 448: “In circumstances where the court is satisfied that the claim has a substantial basis, the mere refusal to testify under a claim of privilege may justify the upholding of the privilege.” But the Court again stated that “* * * the privilege against self-incrimination is a personal one and only the witness may assert it.” p. 447. Shifflett was an appeal from a contempt citation for refusal to testify and the Court held that since no questions were asked by the prosecuting attorney with regard to matters material to the criminal cases then on trial, there was no contempt.

It is clear that Craft was a principal in the second degree. He drove the automobile used by the actual perpetrators of the crimes and was in close proximity and contiguity to the im ¹⁷ mediate place where the crimes were committed, in a position to render aid and assistance. Vincent v. State, 220 Md. 232 ; Agresti v. State, 2 Md. App. 278. He was, therefore, an accomplice.

Barton v. State, 2 Md. App. 52. His testimony being admissible, the question is whether it was sufficiently corroborated, the appellant contending that it was not. At common law a verdict of the jury would not be set aside merely because founded on the evidence of an accomplice which was not corroborated. Luery v. State, 116 Md. 284 .

Some jurisdictions do not require corroboration. See State v. Carey, 76 Conn. 342, 56 A. 632 ; Burns v. People, 148 Colo. 245 , 365 P. 2d 698 ; Commonwealth v. Taber, 350 Mass. 186 , 213 N. E. 2d 868 ; Lyda v. United States, 321 F. 2d 788 (9th Cir.). In some jurisdictions it is required by statute. See People v. Kress, 284 N. Y. 452 , 31 N. E. 2d 898 ; Hubbard v. State, 35 Ala.

App. 211 , 45 So. 2d 795 ; People v. Lyons, 50 Cal. 2d 245 , 324 P. 2d 556 . In at least one jurisdiction other than Maryland it is required by judicial decision. See Sherrill v. State, 204 Tenn. 427 , 321 S. W. 2d 811 . In Maryland the rule was formulated in Luery v. State, supra.

After discussing the reasoning behind the development of the rule, the Court said, pp. 293-294: “Hence it would seem to be safer to require some corroboration * * *. As the reason for the rule, as adopted by most Courts, is that the testimony of an accomplice alone and unsupported is regarded as too doubtful to be safe, the important matter is to have him supported in at least some of the material points involved, tending to show the guilt of the accused.” It said, however, that the trial courts should not require too much in the way of corroboration and that it is not required to have sufficient evidence to convict, exclusive of the accomplice’s testimony. In Wright v. State, 219 Md. 643 , the Court said, page 648: “In all of the cases which followed the Luery case, supra, during the period from 1911 to 1950, the rule was restated and the judgments were either affirmed ¹⁸ or the appeals dismissed because the sufficiency of corroboration was reviewable only on a motion for a new trial in the lower court and not on appeal.” Since December 1, 1950 (the effective date of the amendment to § 5 of Article XV of the Constitution of Maryland giving the Court of Appeals the right and duty—if and when a question is properly raised—to review the legal sufficiency of the evidence in a criminal case) to the decision in Wright , the sufficiency of the corroboration of an accomplice’s testimony was considered in a number of cases, and was deemed sufficient because it “* * * consisted of the behavior and conduct of the accused, or his presence at the scene of the crime under suspicious circumstances, or the ample and sufficient testimony of non-accomplice witnesses in support of some of the material points of the accomplice’s testimony.” 219 Md. 648 . In Wolf v. State, 143 Md. 489 , the Court had said, by way of dictum, that the requirement was that the corroborative evidence “* * * should tend to sustain the charge with respect to ‘some of the material points involved’ [quoting Luery v. State, supra].” In Wright the Court thought it salutary to discuss more fully what was meant by “corroborate” and “some of the material points” or facts.

Citing 1 Underhill, Criminal Evidence (5th Ed. 1956) § 185; Wigmore Evidence (3rd Ed. 1940) § 2059 b and c,,and Polansky v. State, 205 Md. 362 , it restated the rule as follows, p. 650: “[N]ot much in the way of. corroboration is required and * * * it is not necessary in and of itself for the corroborative evidence to be sufficient to convict, yet the corroborative evidence must support the testimony of the accomplice as to some of the material facts tending to show that the accused was either identified with the perpetrators of the crime or had participated in the commission of the crime itself.” (emphasis supplied) This restatement of the rule is in accord with the reasons requiring the testimony of an accomplice to be corroborated as set forth in Watson v. State, 208 Md. 210 at 217: ¹⁹ “The reason for the rule requiring the testimony of an accomplice to be corroborated is that it is the testimony of a person admittedly contaminated with guilt, who admits his participation in the crime for which he particularly blames the defendant, and it should be regarded with great suspicion and caution, because otherwise the life or liberty of an innocent person might be taken away by a witness who makes the accusation either to gratify his malice or to shield himself from punishment, or in the hope of receiving clemency by turning State’s evidence.” It is also in accord with the rule as followed in Tennessee where the rule is judicial and not statutory. It was said in Sherrill v. State, supra, 321 S. W. 2d 811 , 815: “The corroborative evidence must of its own force, independently of the accomplice’s testimony, tend to connect the defendant with the commission of the crime.” The rule as established by statute in New York, Alabama and California is to like effect. In People v. Kress, supra, the Court said that the New York Code of Criminal Procedure, § 399 specifically requires that the evidence connect the defendant with the crime itself. The Code of Alabama (1958) Title 15 § 307 requires corroborative evidence tending to connect the defendant with the commission of the offense and such corroborative evidence is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

In People v. Lyons, supra, the Court said, 324 P. 2d 562 that such evidence must tend to connect the defendant with the commission of the offense and implicate him. See 1 Underhill, Criminal Evidence (1956 Ed.) § 184, pp. 399-400. We think it clear that the rule in this State is that evidence corroborating the testimony of an accomplice is not sufficient if it merely shows the commission of the offense or the circumstances thereof and that some of the material facts of the accomplice’s testimony which it must support are such material facts which tend to show that the accused was either identified with the perpetrators of the crime or had participated in the ²⁰ commission of the crime itself. “Whether the testimony has in fact been sufficiently corroborated must, of course, depend upon the facts and circumstances, and the inferences deducible therefrom, in each case.” Wright v. State, supra, at page 650. The Court of Appeals and this Court in confirming judgments when the question has been raised, have found corroborative evidence tending to identify the defendant with the perpetrators of the crime, or tending to show his participation in the commission of the crime or both. 4 In Keene v. State, 2 Md. App. 325 we reversed judgments rendered on receiving stolen goods because “* * * there was no evidence whatsoever to identify the accused with the perpetrators of the crime or to show that he had participated in the commission of the crime itself * * *” except for the testimony of the accomplice.

From the record in the instant case we find no corroborative evidence supporting the testimony of the accomplice, Craft, as to some of the material facts tending to show that the appellant was identified with the perpetrators of the crime or had participated in the commission of the crime itself. Craft testified that about 12:15 A. M. on January 2, 1965 he, the appellant, Goode and Kitt planned to rob “Little Melvin,” a narcotics pusher. Melvin failed to appear at his house after a wait of some three ²¹ and one-half hours and the quartet formulated plans for another robbery. Pursuant to the plan, they drove in Craft’s “cream colored yellow” ’62 Chevrolet to a lot “down the street behind” Burman’s Cafe, the place of the intended robbery.

Craft remained in the automobile while the other three went toward the cafe. The appellant and Goode were to go inside while Kitt remained outside. Shortly after the three left the automobile, Craft saw a “little boy come by.” The boy had on a hood with the eyes and nose cut out. Kitt came back to the automobile, followed a few seconds later by the appellant and Goode.

The appellant went to the rear of the automobile and placed a bag over the license plate and then joined Kitt, Goode and Craft in the automobile. Kitt had a pistol with a white handle and pointed the pistol at Goode because Goode said he had shot someone in the cafe but it was an accident. The appellant grabbed Kitt’s arm saying that “it wasn’t any sense in him shooting” Goode. The appellant and Kitt left Craft’s automobile shortly after the killing, at which time Goode gave some money to each of them.

Craft did not remember how any of his companions were dressed. By stipulation, the State read into evidence the testimony of three witnesses at the first trial, James C. Burman, the owner of the property (the license was in his wife’s name), Wayne Fleming, a young newsboy, and Leon Marchbanks, a police officer. Burman arrived at the cafe about 6:30 A. M. on January 2, 1965, saw blood all over the floor and an open cash register with $23.00 missing therefrom. Fleming, delivering his papers, saw two men inside the cafe about 6:05 A. M. on January 2, 1965.

One had on a green jacket. He walked around the corner and two men ran around the corner with bags in their hands. He noticed that one man was a Negro. He gave no description of the other men.

They ran to a ’62 or ’63 white Chevrolet. “I think they opened the trunk. They either put something in or took something out and they got in the car, and less than thirty seconds later the car was gone down into the street.” Fleming was wearing a face mask on the morning of the incident because it was cold. The mask was introduced in evidence upon identification by Fleming. Marchbanks, “working the radio car” on January 2, 1965, received a call to go to Bur- ²² man’s Tavern to investigate a holdup.

He discovered the bartender, Hazard, had been- shot. Hazard told him that “two colored males came into the bar and ordered a cup of coffee and a bottle of vodka, and when he set the articles on the bar, one subject produced a gun and walked around behind the bar and started going through the cash register, told him to lay on the floor, and Mr. Hazard told him there was some money in a bottom drawer, and as he went to get the money out of the drawer, he said that’s when the subject shot him while he was laying on the floor, and at that time both of them run outside the bar.” The autopsy report, also admitted in evidence by stipulation, established that Hazard died of a gunshot wound, and that his death was a homicide, incurred during a holdup at Burman’s Cafe, wherein the deceased was found. The evidence adduced by the State corroborated the accomplice’s testimony as to the commission of the offense and the circumstances thereof but it did not support his testimony as to some of the material facts tending to show that the appellant was either identified with the crime or had participated in its commission. There was no corroborative evidence, for example, that the-appellant was in the company of the perpetrators either shortly before or shortly after the crime, or that he was in the vicinity of the crime when it was committed, or that he was in possession of the murder weapon or of some of the proceeds of the robbery - or that he was seen in Craft’s automobile.

In short, there was no evidence to connect the appellant with the perpetrators or the commission of the crime except the testimony of the accomplice and this is not sufficient. In Kitt v. State, supra, in which we found the corroborative evidence to be sufficient, there was the testimony of a non-accomplice, Evelyn Knight, that between 6 :00 A. M. and 7:00 A. M. on the morning of January 2, 1965 the appellant and Kitt came to her house and that Kitt had a gun with a white handle. Kitt also acknowledged to a police officer that he had seen Craft, Goode and the appellant together prior to the commission of the crime. Mrs. Knight was called as a witness by the State in the instant case, but upon objection, her testimony was ruled inadmissible.

We find that there was not sufficient corroboration of the tes ²³ timony of the accomplice to sustain the conviction. We must, therefore, reverse the judgment and shall remand the case for a new trial. Although the case is remanded for a new trial, it is deemed advisable to consider certain of the appellant’s other contentions. DOUBLE JEOPARDY The appellant contends that he was twice placed in jeopardy.

This contention is based on two grounds: first, that “jeopardy attached at the moment of the subsequent indictment” returned against him after the decision in Schowgurow v. State, supra, and, second, that he was placed in jeopardy at his first trial in the Circuit Court for Baltimore County, resulting in the granting of a new trial on the murder charge because of the form of verdict of the jury. Among the rights of an accused in criminal proceedings set forth in Amendment V to the Constitution of the United States is that no person shall “* * * be subject for the same offense to be twice put in jeopardy of life or limb * * This provision has not as yet been held to be applicable to state court prosecutions under the Due Process Clause of the Fourteenth Amendment. 5 Ruckle v. State, 230 Md. 580 ; Gee v. State, 2 Md. App. 61. However, in Maryland, protection against double jeopardy is available by way of the common law. State v. Barger, 242 Md. 616 ; Smith v. State, 1 Md. App. 297 .

In 1863, in Hoffman v. State, 20 Md. 425 , 434 the Court of Appeals stated the common law meaning and adopted it: “At common law it meant nothing more than that where there had been a final verdict either of acquittal or conviction, on an adequate indictment, the defendant could not be a second time placed in jeopardy for the particular offense.” ²⁴ In Hoffman, the following proceedings were entered of record, p. 430: “[BJecause it appears to the said court here, that after the said jury had been sworn, and the above indictment had been read to them, and they had been charged in the usual way by the clerk of the court here, several witnesses for the State who had been in attendance up to that period, had been discovered to be absent, and that after adjournment to the next day, the said witnesses were still absent, which said witnesses had been duly summoned and put under security for their presence in court upon the trial of the case, and attachments against them having been issued and returned ‘non estf no statement having been made or evidence offered to the jury in the said case, therefore, by order of the said court here, the said jury are discharged, and are wholly discharged from giving any verdict of and upon the premises above mentioned in the said case * * * » The defendant objected to the discharge of the jury and moved the court to discharge him on the ground that he could not be put twice in jeopardy for the same offense. Applying the common law meaning, the Court held that he was not “for the same offense twice put in jeopardy of life or limb,” and that the discharge of the jury, being a matter of discretion of the trial court, was not a subject of review on a writ of error. The defendant based his contention on the double jeopardy clause of the Fifth Amendment. The Court did not discuss the applicability of the clause to state prosecutions (The 14th Amendment was not declared ratified until July 28, 1868) but interpreted the clause in accordance with the authorized exposition established at its adoption, stating that, “Being transformed from a legal maxim to a constitutional clause, does not, it is apprehended, change the meaning of words, although it makes the right they guaranty, more solemn and sacred.” p. 433.

It found that in the decisions of the English courts antecedent to the Constitution the term “twice in jeopardy” had been construed as equivalent to autre fois acquit or autre fois convict and that this construe ²⁵ tion had been followed by the Supreme Court of the United States and by the courts of Massachusetts, New York and Mississippi. Thus, it said, no man is in jeopardy until verdict is rendered. The common law meaning of double jeopardy as stated in Hoffman was followed in Anderson v. State, 86 Md. 479 , the Court holding that the fact that a jury in a criminal case was discharged because unable to agree upon a verdict was no bar to a subsequent trial “* * * because there was no verdict by the jury, and no man is in jeopardy until verdict has been rendered.” p. 482. Hoffman was cited in Robb v. State, 190 Md. 641 , 650 as authority for the statement that the rule against double jeopardy is not set out in the Maryland Constitution but is applied in this State as a doctrine of the common law and also in State v. Barger, 242 Md. 616 , 619 where the rule as set forth in Hoffman was quoted in a discussion of “The Principle of Double Jeopardy”.

We find no case in this State holding directly or by inference that the common law meaning of double jeopardy as enunciated in Hoffman is not now controlling. 6 The effect of the entry of a nolle prosequi is not inconsistent with this common law meaning. If entered without the consent of the defendant after trial has begun, jeopardy attaches because it ²⁶ operates as an acquittal. Hochheimer, The Laws of Crimes and Criminal Procedure, 2nd Ed. § 152, p. 171. For entry of a nolle prosequi before trial see Barrett v. State, 155 Md. 636 ; for such entry after trial has begun see Friend v. State, 175 Md. 352 .

The great majority of the cases in this jurisdiction in which the question of double jeopardy is presented involve the question after a verdict of acquittal or conviction. It has been established that an accused cannot be again tried after a verdict of acquittal. As the Court said in State v. Shields, 49 Md. 301, 303 (quoted in State v. Adams, 196 Md. 341, 348 ): “It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted, and it matters’.not whether such’ verdict be the result of a misdirection of the judge oh a question of law, or of a misconception of fact on the part of the jury.” See also State v. Reed, 12 Md. 263 . In Barger v. State, 235 Md. 556 , the accused was indicted for murder and found by a jury to be guilty of murder in the second degree.

On appeal, the Court reversed the judgment and remanded the case for a new trial because the trial court erred in denying an advisory instruction with regard to the right of the accused to assert the defense of self defense. Following remand the State indicated it intended to retry the accused as if he were being tried for the first time and the accused moved to dismiss the indictment on the ground of double jeopardy. The lower court granted the motion “as to murder in the first degree” and the State appealed, State v. Barger, supra. The Court held “* * * that where there has been a regular trial on a valid indictment and a finding of not guilty of murder in the first degree the accused cannot thereafter be tried at the instigation of the State for the offense of first degree murder” and “* * * the appeal and granting of a new trial did not have the effect of waiving the question of double jeopardy as to first degree murder.” pp. 625-626, 628.

In reaching the decision the Court cited three cases as sufficient ²⁷ to illustrate the effect of the common law rule as it has been consistently applied in this State—State v. Shields, supra; Cochran v. State, 119 Md. 539 ; State v. Rosen, 181 Md. 167 . In each the accused had been acquitted on a valid indictment and further prosecution was barred. Although the rule against double jeopardy also forbids a second trial for the same offense when the accused was convicted, Gilpin v. State; 142 Md. 464 , this does not preclude a retrial granted on remand upon reversal of the judgment on appeal. 7 See State v. Williams, 5 Md. 82 . So in State v. Barger, supra, the Court held that Barger could be tried again on second degree murder or manslaughter.

Whether the rationale be that there is no conviction outstanding when judgment is reversed or that a waiver is accomplished by the affirmative action of the defendant when he procures a judgment against him to be reversed or set aside on appeal, the Court of Appeals and this Court have consistently permitted the accused to be again tried upon a reversal. Other cases in which the question of double jeopardy has been presented are consistent with the rule. If an accused has not been tried on a valid indictment, he has not been put in jeopardy and may be tried again. Kearney v. State, 48 Md. 16, 27 .

The same is true of trial on an invalid information. Stearns v. State, 81 Md. 341, 347 ; State ex rel Shatzer v. Warden,