Burris v. State

Lowe, J., delivered the opinion of the Court. ⁷⁰⁵ The appellant in this case initially questions the sufficiency of the evidence from which he was convicted by Judge James Macgill in the Circuit Court for Howard County of receiving stolen goods of the value of $100 or more. Our review of the record indicates that the evidence was sufficient. Judge Mac-gill’s careful and meticulous summary of reasons for so holding sets forth in detail sufficient factual findings which our review substantiates. He was not in error, Md. Rule 1086, nor will it enhance this opinion to repeat what he stated in the record.

Appellant’s second issue falls under the weight of his own contention. He complains that the court committed error by having permitted the State to elicit a statement from a witness in an attempt to demonstrate an admission by silence. See Ewell v. State, 228 Md. 615, 618 (1962). He argues that: "Here, it was established that appellant was present when Jones made the statement [ 1 ] to Davidson, but it was never demonstrated that appellant failed to interpose a denial!

In fact, the witness could not remember whether appellant responded to the statement: 'He might have, I don’t know.’ ” Therein lies the defect in appellant’s argument. Because it was never established whether or not appellant commented, there was no admission by silence. The judge, as factfinder, so indicated by his own lengthy questioning of the witness which concluded with the court asking: "Do you recall whether or not Mr. Burris made any answer to that when he made that statement? A. No, I do not.

THE COURT: You don’t recall him saying anything. A. No. ⁷⁰⁶ THE COURT: He could have or could not have. Is that right? A. True.

THE COURT: All right. I think I have no further questions unless counsel has.” Appellant correctly contends that a necessary element of groundwork toward the admission of such evidence includes establishing that the accused failed to deny the assertions. "If an admission by silence is to be received against the silent party, it must be found (1) that the statement was actually made; (2) that the reaction of silence or evasion took place as claimed; (3) that the party heard and understood the statement; and (4) that under all the circumstances the party’s conduct makes it probable that he believed the statement to be true.” Zink v. Zink, 215 Md. 197, 202 (1957). See Ewell, supra at 618 .

We presume that the judge knew the law. Hebb v. State, 31 Md. App. 493, 499 (1976). We must also assume that he was perfectly capable of perceiving the problem and distinguishing whether or not the Zink criteria were met. "It is true that judges, being flesh and blood, are subject to the same emotions and human frailties as affect other members of the specie; however, by his legal training, traditional approach to problems, and the very state of the art of his profession, he must early learn to perceive, distinguish and interpret the nuances of the law which are its 'warp and woof.’ ” State v. Hutchinson, 260 Md. 227, 233 (1970).

The very fact that the judge so meticulously sought to establish whether a "reaction of silence or evasion took place as claimed”, Zink, supra, indicates that he had discerned the problem and had resolved it properly. The fact that the evidence was elicited, if error at all, was harmless error especially in light of this case being nonjury. State v. Babb, 258 ⁷⁰⁷ Md. 547, 550 (1970). In Babb , the Court of Appeals pointed out that which fortified this conclusion: "The assumed proposition that judges are men of discernment, learned and experienced in the law and capable of evaluating the materiality of evidence, lies at the very core of our judicial system.

Such an assumption would be completely unwarranted with regard to a jury of laymen and the impact which evidence may have upon their deliberative powers.” Id. at 550-551 . These legal presumptions of judicial omniscience (Williamson v. State, 25 Md. App. 338, 341 (1975), cert. denied, 275 Md. 758 (1975)), lead us