Caviness v. State

Marbury, J., delivered the opinion of the Court. Daniel Garland Caviness, appellant, was tried in the Criminal Court of Baltimore before Judge Shirley B. Jones, sitting without a jury, and was convicted on the first count of indictment 4508 charging him with breaking and entering a warehouse with intent to steal goods of the value of $100 or more therefrom and also on indictment 4507 charging him with resisting arrest. He was sentenced to the Maryland Correctional Institution for four years for breaking and entering and one year for resisting arrest, the sentences to run concurrently, and has appealed from those judgments and sentences. On Saturday, July 24, 1965, at about 8:00 a.m., a Baltimore policeman, while patrolling in a police car, noticed that the hasp of a lock on the door of a shed, which was maintained as a hobby workshop, was removed and that the door was partially open.

When the policeman went into the shed he observed some items scattered around and noticed a few tools on some boards of lumber. As he was making a further investigation, two males ran out behind him. He saw them, but because the shed was dimly lighted he did not immediately recognize them. However, he never lost sight of them, and when they got out into the daylight, he recognized the appellant, who was only a short distance away, as one of the two> fugitives.

After giving chase, he apprehended only one of the two, as appellant outran him. The policeman testified that he knew appellant by sight and knew members of his family. Appellant produced three witnesses who testified, not without serious discrepancies, that appellant had been with them at the time he was said to have been seen running from the shed. Appellant first makes the contention that his representation by his court appointed attorney in the court below was so in ⁵⁷⁸ adequate as to amount to incompetency of counsel.

He based this contention on the claims that his attorney visited him once before the trial while he was in jail awaiting trial; that he was not adequately advised of his rights to have his indictment quashed; that his attorney told him it would be best for his case if he took the stand; and that all witnesses necessary to his defense were not summoned. A close scrutiny of the record indicates that appellant’s contention is totally without merit. It indicates that appellant’s attorney was very familiar with the happenings and defenses of this case and that the attorney made timely objections and adequately protected appellant’s interest. At the trial, both the judge and the attorney made certain that appellant knew his right to have his indictment quashed under Schowgurow v. State, 240 Md. 121 , 213 A. 2d 475 , but he elected to waive this right.

Also the record is clear that appellant was advised of his constitutional right not to testify. He elected by his own decision not to take the stand. However, when the trial was continued until