Burley v. State

Anderson, J., delivered the opinion of the Court. Appellant, Robert A. Burley, was tried on October 31, 1968 in the Circuit Court for Baltimore County by a jury, Judge John N. Maguire presiding, on a seventeen count indictment, the first count of which alleged robbery with a dangerous and deadly weapon, and the other counts alleged allied offenses. The jury found appellant guilty on the first count, robbery with a dangerous and deadly ⁷⁰⁴ weapon of Jack Cheslock; the sixth count, grand larceny of money belonging to Jack Cheslock; and the tenth count, larceny of specific goods worth $100. or more, the property of Cheslock, Inc. After the denial of a motion for a new trial, appellant was sentenced to three concurrent fifteen year terms under the supervision of the Department of Correctional Services. Appellant presents four questions on appeal.

They are: 1. Did the lower court err in overruling appellant’s motion for a continuance in order to allow him to summons the receptionist from the office of Eugene H. Owens, M. D., who could present testimony on his behalf? 2. Did the lower court err in overruling appellant’s objection and in admitting into evidence a gold Lucien Picard watch and gold ring with a jade stone? 3. Did the lower court err in allowing the State to attack the appellant’s credibility by questioning him relative to prior convictions? 4.

Were not the verdicts of the jury inconsistent in law and consequently inadequate to support a judgment? I We have held that the granting or denial of a continuance is-within the sound discretion of the trial court. Nichols v. State, 6 Md. App. 644 , 252 A. 2d 499 . To show an abuse of discretion for failure to continue a case because of the absence of a witness, the party requesting the continuance should show that the evidence of the absent witness was competent and material, that he believed the case could not be fairly tried without the evidence, that he had reasonable expectation of securing the evidence within some reasonable time, and that he had made diligent efforts to secure the evidence.

Clark v. State, 6 Md. App. 91 , 250 A. 2d 317 . At trial, defense counsel entered into a stipulation with the State that Dr. Owens’ records revealed that ap ⁷⁰⁵ pellant had visited his office on the day of the crime. The doctor’s records in no way indicated the time of appellant’s visit and thus, standing alone, did not provide appellant with the alibi he sought. To bolster the alibi, appellant sought during trial to call Dr. Owens’ receptionist for which he requested a continuance.

We believe that the appellant did not meet the requirements set forth above to compel a continuance. Appellant made no proffer of the testimony of the receptionist. There is nothing in the record to indicate that she would have been able to testify as to anything more than the authenticity of the doctor’s records as stipulated. Defense counsel admitted doubt as to her ability to testify even as to the records, for it appeared the appellant did not sign the ledger in the doctor’s office.

Thus there was no showing that the testimony sought to be adduced was material. In addition, appellant failed to show that he had made diligent and proper efforts to secure the evidence prior to trial. The comment of defense counsel that “I had no idea he would want the receptionist here” provides an indication that appellant had not informed him prior to trial of his desires. We find that the trial judge did not abuse his discretion in refusing to grant a continuance.

II During its case in chief, the State introduced, over objection, a gold Lucien Picard watch and a gold ring with a jade stone as part of the proof of the corpus delicti. The defense objected on the ground that the two items offered were not included in the original indictment. The original indictment was filed against appellant on September 16, 1968, which incorporated by reference Baltimore County Police Report CC#681-985 listing items alleged to have been taken. The above mentioned two items were not on the list.

An amended indictment was filed on October 28, 1968, which included the watch and the ring. A copy of the amended indictment was served on the appellant on October 31, 1968, as shown by the sheriff’s return in the record before us.