Davis v. State

Per Curiam. Lorenzo Davis, the appellant, was tried in the Criminal Court of Baltimore before Judge Joseph Carter and a jury under a series of indictments stemming from events which occurred on November 6, 1965. He was found guilty under the first and fifth counts of Indictment No. 5179 charging, respectively, armed robbery and assault upon Henry Naiditch. He was also found guilty as follows: Under the first count of Indictment No. 5180 charging armed robbery of Edward Zorn; under the second count of Indictment No. 5181 charging assault upon Francis Kuhn; under the first count of Indictment No. 5182 charging the carrying of a concealed weapon.

Consecutive sentences, totaling 50 years, were imposed. Naiditch, the owner of a grocery store in Baltimore City, testified that on November 6, 1965, at approximately 8:15 A.M., he and others who were present in his store at that time were robbed and assaulted by two armed men. Davis was armed with a sawed off shotgun, and his accomplice was armed with ■a pistol. A customer, Francis Kuhn, was hit in the head several times with the butt of the shotgun by Davis.

Naiditch was similarly beaten; and the store was ransacked. Over $2,000 was taken from the cash register and the person of Naiditch, as was a pistol owned by him which was kept near the cash register. Davis was identified by Mr. Naiditch at the trial while seated among other persons in the courtroom although he did not identify him at a police lineup held several days after the robbery. ⁴⁹⁵ Francis Kuhn testified that he was hit in the head four or five times with the shotgun; that he received a fractured skull from the beating; and that Davis, seated among the spectators, was his assailant. Kuhn was unable to attend any lineup because of his injuries.

Edward Zorn, an employee of the Southern Fuel Company, testified that he was shoved and robbed by Davis. His wallet containing $113 and also his car. keys were taken. Zorn identified Davis at the trial, and also had identified him at a police lineup held several days after the offense. Mary F. Watty testified that as she was about to enter the Naiditch grocery store on the date in question, Davis and another man were leaving the premises.

Davis was in the process of putting a shotgun underneath his coat at the time. She had previously known Davis and identified him both at the time of trial and at a police lineup. She stated that she also recognized Davis’ accomplice, Bernard Jones, 1 and knew him by name. She immediately reported to the police the name of the accomplice, Jones, but stated that she did not, at that time, remember Davis’ last name, although she did recall his first name.

She admitted that she had at one time accused Jones of burglarizing her apartment. Davis denied any involvement with the crime and alleged that Mary Watty had a grudge against Jones. He presented three alibi witnesses. On appeal he presents several contentions which are hereinafter set forth.

He first alleges that the state should have been required to elect which counts of the indictments it wanted to present to the jury where there was a merger of counts. Although he cites a number of cases none of them is appropriate to the facts of the present case. He specifically complains that the fifth count of Indictment No. 5179 merged with the first count because assault and battery was an essential element of robbery with a deadly weapon. In Tender v. State, 2 Md. App. 692 at 698 , 237 A. 2d 65 , this Court discussed the doctrine of merger in detail and found specifically that the offense of assault did not merge into the greater offense of robbery with a deadly weapon where ⁴⁹⁶ there was sufficient evidence for the trial court to find that the assault was separate and distinct from the robbery.

We think the facts of the present case indicate clearly that there was sufficient evidence for the trier of facts to find the assault on Henry Naiditch was separate and distinct from the assault with intent to rob. Davis alleges error in the denial of his motion for a mistrial based on an allegation that the state had exercised its peremptory challenges in such a way as to strike members of the Negro race from the panel. The motion has no substance in fact. The transcript shows that the state struck four female members of the panel after Davis’ challenges had been completely used up, and that these prospective jurors were replaced by males, two of whom were Negroes; and that at that point the state still had two unused challenges which were never used.

The prose:cuor explained t¡hat he was trying to remove female jurors from the panel. Davis contends that his second motion for a mistrial should