Crosby v. State

Orth, J., delivered the opinion of the Court. At a joint trial in the Criminal Court of Baltimore, without a jury, each appellant was convicted of three offenses of robbery with a deadly weapon and was sentenced to imprisonment for a total term of 30 years. The appellant Smith was also convicted of carrying a deadly weapon concealed upon his person, for which he received a concurrent sentence of imprisonment for a term of two years. ROBBERY OF ROBERT HECTOR, INDICTMENT NO. 3970 Robert Hector, a driver of a Baltimore Transit Company bus, testified that about 11:20 P.M. on August 7, 1966 he stopped his bus at the end of the line at Carey and Cumberland Streets.

He changed the route signs and cut off the motor because he had a 10 minute layover. The bus was parked in front of a gate to a school lot. Three men came off the lot and boarded the bus. One of the men, Crosby, had a long-barrelled gun in his hand which Hector described as a “.22 target pistol.” Crosby pointed the gun at Hector and said, “Back up,” several times.

When Hector did not immediately comply, ⁵⁸² Crosby, using an obscene term, told Hector to “lay on the floor” or he would fill him “full of holes.” Hector did as he was commanded and Crosby went through the driver’s pockets and took about $1.50 in change and his wallet. The other two men took the money changer and the cash box containing rolls of quarters and nickels. The three men got off the bus and ran. Hector telephoned the Transit Company from a “phone right at the corner” and the Company called the police.

Hector positively identified Crosby at the trial but was unable to identify the other two men. Also, at the trial Hector identified a gun, subsequently taken by the police from Smith, as similar to the gun used by Crosby in the robbery. ROBBERY OP PHILIP HARRISON, INDICTMENT NO. 3971 and VIOLETTE PARKER, INDICTMENT NO. 3972 Philip Harrison, a driver of a Baltimore Transit Company bus, testified that about 12:52 A.M. on August 8, 1966, he stopped to pick up a fare at 3400 Clifton Avenue. There were three passengers on the bus at the time.

At the trial, Harrison identified Crosby as the man standing at the bus stop. Crosby had a quarter in his hand, boarded the bus and told the driver to “hold it, there were more passengers coming.” Two more men, identified by Harrison at the trial as Smith and Williams, boarded the bus. Another man, outside the bus, identified by Harrison at the trial as Gross, pointed a “long revolver, a pistol,” through an open window of the bus. Harrison described the weapon as an “unusual gun that you don’t see very often,” and as having a very long barrel.

The men who boarded the bus took money from Harrison’s pockets and from his cash box, in an amount of about $65, and his wallet. They also took a wallet from a passenger, Violette Parker. During these proceedings, Gross was pointing the gun through the window. Gross said it was a hold-up and once, apparently when Harrison did not obey commands quickly enough, Crosby told Gross to shoot the driver.

At another time he said to the driver, “Turn around and don’t look at me” and fired the gun. Harrison said a gun produced at the trial “looks to be identical” to the gun Gross had during the robbery. Violette Parker testified that she was a passenger on the ⁵⁸³ bus, seated “right behind the driver.” She identified the first man to board the bus as Crosby. Crosby went toward the back of the bus.

Two other men, whom she was unable to identify, got on the bus. A fourth man, whom she identified as Gross, pointed a gun through the bus window. Crosby took her wallet, containing about $10.35. She identified the gun at the trial as similar to the one Gross had at the robbery.

She also said that Gross fired the gun at instructions from Crosby to shoot her when she would not give up her wallet. She thought another passenger, Albert Green, had been wounded by the shot from the gun, but discovered that Crosby had hit Green with a record player. The passenger, Albert Green, testified that he had a radio and record player on the bus. Crosby, whom he had seen at a time prior to the robbery, reached for these articles and when Green tried to prevent him from taking them, Crosby hit him with the record player.

At the trial Green identified Crosby but was unable to identify any of the other three robbers. Ida Jones, also a passenger on the bus, identified Crosby as one of the men who boarded the bus but was unable to identify the others who participated in the robbery. Crosby looked at her, held his hand out and, when she handed him a radio she had, threw it on the floor. THE CONVICTIONS OP CROSBY On appeal Crosby presents four questions: “(1) Did Counsel’s calling of officer Guest as a witness prejudice Appellant’s defense to such a degree to amount to incompetency ?

(2) Did Sergeant Freeman’s questioning of appellant at his arrest violate his constitutional rights against self-incrimination ? (3) Did the Court err in deducing the gun seized was the same gun used in the holdups sans proof of recent use ? (4) Did the Court err in accepting the theoretical argument of the State in face of the evidence presented ?” ⁵⁸⁴ (1) After the State concluded its case, counsel for Crosby called Officer George Guest as a witness and examined him as to the arrest of Smith. The testimony of the officer was to the effect that before Smith was interrogated there was compliance with the procedural safeguards required by Miranda v. Arizona, 384 U. S. 436 .

As we understand the contention, Crosby urges that had counsel not elicited this testimony, there would have been no evidence in the case that information received from Smith was constitutionally obtained. Therefore “all subsequent activity would be non-rebutted presumption accruing to” Crosby, including the presumption that his arrest was illegal. There is no merit to the contention. The legality of Crosby’s arrest was immaterial to his convictions.

There were no “fruits” of Crosby’s arrest introduced at the trial and the legality vel non of the arrest did not vitiate the convictions. Powell v. State, 1 Md. App. 495 ; Hutchinson v. State, 1 Md. App. 362 . There was no prejudice to Crosby by the act of counsel of 'which he complains. (2) Sergeant Melvin D. Freeman of the Baltimore City Police Department stated on cross-examination that he had asked Crosby certain questions on the street before the arrest.

The record does not disclose what replies Crosby made. The record does show that apparently at a subsequent time, Crosby was “informed of his rights” and refused to make a statement. No statements of Crosby, oral or written, exculpatory or inculpatory, were proffered. Crosby urges that he had to be informed with respect to the procedural safeguards established by Miranda v. Arizona, supra, at the time of his arrest, in any event, or his convictions are unconstitutional.

Miranda does not so hold nor does, as Crosby urges, Escobedo v. U. S., 378 U. S. 478 . The contention is frivolous. See Gaudio and Bucci v. State, 1 Md. App. 455 ; Nadolski v. State, 1 Md. App. 304 . (3) Crosby urges that as the ballistics report introduced in evidence by another defendant did not show whether or not the gun had been fired, the weapon should not have been admitted ⁵⁸⁵ in evidence against him and, if it was not in evidence, there was insufficient proof of the use of a deadly weapon in the robberies.

There was ample evidence that a gun was used and that the gun introduced was similar to the unusual type of pistol used by the robbers. It was properly admissible and the contention of Crosby goes, at best, only to the weight of the evidence. Cox v. State, 192 Md. 525 . See St. Clair v. State, 1 Md. App. 605, 620 .

The findings of the trial court on the evidence were not clearly erroneous. Md. Rule, 1086. (4) Crosby’s last contention goes to the sufficiency of the evidence. Crosby was positively identified at his trial as one of the participants in each of the robberies of which he was convicted.

We find the evidence ample to sustain the convictions and that the findings of the trial court on the evidence were not clearly erroneous. Md. Rule, 1086. The judgments as to Crosby on indictments No. 3970, No. 3971 and No. 3972 are affirmed. CONVICTIONS OP MARVIN M. GROSS Gross presents three questions on appeal: “(1) Was the evidence legally sufficient to sustain a verdict of guilty ?

(2) Was the arrest of the Appellant illegal and was there a violation of his rights because he was never informed of his constitutional rights? (3) Were