Davis v. State

Menchine, J., delivered the opinion of the Court. Michael Anthony Davis was convicted of storehouse breaking with intent to steal goods of the value of $100.00 and upwards by Judge Dorf presiding in the Criminal Court of Baltimore without the aid of a jury. He was sentenced to a term of two years. His appeal to this Court raises the following questions: 1.

Was the identification evidence sufficient to link appellant to stolen goods? 2. Did the trial judge err by applying a presumption of law rather than an inference of fact in connection with the supposed possession of stolen goods? 3. Whether there was such possession of stolen goods by the accused as to justify an inference of guilt. The questions are intertwined and will be considered together.

There was evidence from which the following facts could be found: A grocery store was broken into at about 2 A.M. by the removal of an iron gate, and the breaking of the glass in the front door. A carton of cigarettes of the value of $85.00, plus $60.00 in cash were taken from the premises. Sergeant [then Officer] Voss in a cruising vehicle received radio warning of a breaking and entering in progress at 538 N. Arlington Avenue, by two negro males, 16 to 18 years of age, thin build. One was described as wearing a gold shirt, with a small bush haircut; carry ³⁷⁷ ing a case of cigarettes and seen running west on Edmondson Avenue.

Within minutes Sergeant Voss saw the defendant, who fitted the broadcast description, emerging from a vacant house at 613 N. Carrollton Avenue. The officer stopped, opened the vestibule door and saw a case of cigarettes in the vestibule. The door leading from the vestibule into the house itself was locked and boarded shut, the house vacant. The cigarettes (in fact those stolen minutes before) were placed in the police vehicle and the defendant was followed and arrested in the 500 block of Carrollton Avenue, a short block from the scene of the breaking and entering.

The officer never lost sight of the defendant after initial observation. He saw a person in a crowd that had gathered slip the defendant a jacket to cover his gold shirt, although the night was “real hot.” No one else in the group was wearing a gold shirt. The defendant denied participation in the breaking and entering; denied being in the vestibule of the vacant house; admitted receiving a jacket from a friend but said it was because “the boy saw I had the chills and said ‘Man, you put on my jacket.’ ” Defendant also testified that burns upon his hand had required “skin grafts” about July 4 that prevented him from lifting heavy weights or touching objects with his fingers. The breaking and entering took place on August 18, 1971.

There were no bandages remaining on his hands. At the conclusion of the case on December 16, 1971, the trial judge stated: “I think the state has met the burden of proof beyond a reasonable doubt and to a moral certainty.” On December 23, 1971, when denying motion for a new trial, he added: “* * * I’ve gone over the testimony and my notes. I agree with you that the case strictly comes down to a question of credibility of one witness as opposed to another. I don’t think ³⁷⁸ there is any doubt in anyone’s mind that the place was broken into. * * * We have * * * Sergeant Voss and we have the defendant, Mr. Davis.

Their testimony is exactly opposite * * *. Mr. Davis has specifically said he did not come out of the vacant house * * *. Sergeant Voss says * * * he saw the subject leave the vacant house and * * * that he never lost sight of the subject from the time he left the vacant building until the time he arrested him. * * * as far as the credibility is concerned, * * * I would believe Sergeant Voss in this case. Therefore, if, in fact, I do believe Sergeant Voss, it comes down to the question whether or not, based on his testimony, if it is enough to convict beyond a reasonable doubt and a moral certainty. * * * He saw one of the subjects leaving a vacant house * * * that subject fitted the description. * * * He stopped his car, opened the front door of a vacant house and there he saw the case of cigarettes, which was later identified as the cigarettes that had been taken in this burglary.

Based on this, we have the defendant who is observed at or near the place of the breaking; at almost the identical time the breaking and entering took place; within the proper radius; within the right space of time *