Burnett v. State

Morton, J., delivered the opinion of the Court. In a bench trial conducted in the Criminal Court of Baltimore, appellant was convicted of the separate crimes of rape and robbery for which he was later given consecutive sentences of life imprisonment and ten years imprisonment. In the course of the trial below the victim testified that shortly after she crossed the Chesapeake Bay bridge, while enroute from the eastern shore of Maryland, she noticed that a car occupied by two men began following her and continued to do so until she arrived at her apartment house in the Brooklyn area of Baltimore City at approximately 10 o’clock in the evening. As she got out of her car, she was attacked by two men who dragged her to an open field.

One of the men proceeded to rape her, the other attempted a perverted sex act and money was taken from her purse. She described the car which had followed her and had parked just ahead of her as she reached home as a “1958 Chevrolet with a light top.” She testified that one of her assailants wore a gold, paisley shirt and the other had on dark clothing. In the course of her efforts to fend them off, she was able to bite the finger of one of the men — “I know I bit as hard as I could” — and she “took off” a ring worn by the other man. The ring was later turned over to the police and introduced into evidence. ⁵⁵² Several hours after the attack, the appellant was arrested while being treated at the Mercy Hospital.

The arresting officer testified, over objection, that a nurse told him that appellant “had been in to receive treatment for a human hand bite.” The trial judge thereupon sustained the objection and ordered that the answer be stricken. The same officer was shown a photograph of an automobile which had earlier been identified by the victim as “looking like” the car that had followed her. He testified that the car in the picture was the same car he had seen parked in front of the Mercy Hospital at the time he arrested appellant. The officer stated that he had personally ascertained the ownership of the car but when he was asked to give the name of the owner, the objection by defense counsel was sustained.

At the conclusion of the trial, the presiding judge announced his verdicts of guilty and, in the course of explaining how he reached the verdicts, made the following statement: “It is hard for me * * * to totally exclude from my consideration the fact that there is evidence which the State could have produced and has not produced because of technical rules of evidence. I am afraid I must infer that the injury to the finger was a human bite because I know that’s in the record which has been excluded, and I don’t attach any significance to the attempts to get the registration of the automobile in because I don’t know whether it’s registered to the other defendant, but we are dealing with items of evidence. The only part of the evidence available which I can’t put out of my mind which is not technically in evidence before me is the character of the injury to the finger. I must say that I am operating on the assumption that that is a hu ⁵⁵³ man hand bite or finger bite, and that is not technically in evidence before me.

I am not paying attention to the registration of the automobile, but the evidence is available to show that I’m wrong or cast out on that if need be to sustain the verdict. I would have the witnesses from the hospital subpoenaed to get a medical opinion as to the character of the injury to the finger. The circumstantial evidence unexplained leaves no doubt in my mind.” On April 7, 1970, some four days