Deaver v. State

Melvin, J., delivered the opinion of the Court. On May 8, 1975, after a non-jury trial in the Circuit Court for Baltimore County, the appellants, John Clarke Deaver and Frank Digioia, were found guilty of armed robbery. In this appeal they contend the evidence presented to the trial judge was not sufficient to support the guilty verdicts. We agree and shall vacate the judgments of conviction.

The scope of our review in assessing the sufficiency of the evidence in a non-jury case is governed by Maryland Rule 1086 which plainly commands that we cannot reverse the judgments of the trial court on the evidence unless we find the judgments to be clearly erroneous. Szewczyk v. State, 7 Md. App. 597 (1969). The test as to whether the trial judge was clearly erroneous in reaching a guilty verdict is whether admissible evidence showed either directly, or circumstantially, or supplied a rational inference of, the facts to be proved from which the trier of fact could fairly be convinced beyond a reasonable doubt of the accused’s guilt of the offense charged, with due regard being given to the opportunity of the lower court to judge the credibility of the witnesses. Robinson v. State, 17 Md. App. 451 (1973).

The Evidence Lillian Tenney, an employee of the Budget Bakery shop located on East Joppa Road in Baltimore County, testified that on Thursday, June 27, 1974, at approximately 5:00 P.M., “two young boys” entered the shop. One boy had a package of buns in his hands, “and he laid them on the counter”. The other boy “came around the counter behind me”, produced “a small gun” and said, “This is a holdup”. The boy with the gun then “went right to the desk, and right to the middle drawer — and he didn’t go through all the drawers — if he knew just what he was doing, and he opened ²⁶⁵ the middle drawer, and we had a white envelope there where we keep our money from the register that we go down and get out money orders at the end of the day, and he just reached in and took the envelope and ran around the partition, and both of them took off.” $190.00 was in the envelope in “tens, twenties, fives and ones”.

The extent of Mrs. Tenney’s description of the boys was that they “wore dungarees, tennis shoes”, and “both had hair down to their collars”, and the one without the gun “had large mirrored sunglasses on”. When shown a pair of sunglasses, she said they were “the same type”. The sunglasses were marked State’s Exhibit No. 1 “for identification only”. She testified to no other identifying details such as weight, height, color of hair or approximate ages of the “young boys”.

She did not identify the appellants at the trial as the robbers. The next witness for the State was Mary Elizabeth Joyces, between 10 and 12 years old, who testified that at approximately 5:00 P. M. on June 27, 1974, she was walking in Yakona Alley. Later testimony indicated the alley to be between one and two blocks from the Budget Bakery. She saw “two boys” run down the alley and heard one of them say, “Hit the gas”.

One of them had a “light brownish” envelope in his hand. The two boys then got into the back seat of a green Volkswagen automobile. Two other “men” were already in the front seat of the Volkswagen and it drove off “rather fast”. One of “the two men” that ran down the alley was wearing mirror sunglasses.

State’s Exhibit No. 1 for identification was the “same type”. The driver and the front seat passenger had “bigger sunglasses on”. Miss Joynes described the driver of the car as having “frizzy hair, like, like it was about came to right about here, and it was, like, frizzy. ...” She testified to no other description of the four individuals she saw in the alley. She was asked by the prosecutor “to look around the courtroom, and tell the Court if you see any of the four men that you saw on June 27, 1974”.

She responded, “Yes, I can, one of them” and pointed out the appellant Deaver. When asked, “ . . . [w]hich one of the four boys would he be?”, she replied, “I think he was the one who ²⁶⁶ came running down the alley”. On cross-examination she was asked: “Q. This offense occurred back on June 27th, 1974, almost a year ago. Since that time, have you seen any of these parties?

A. I thought I did, but I am not sure, really, sure”. She further testified that she had been unable to identify any of the boys from “some pictures” shown her by the police, although she had “thought” she could identify one of them but she “wasn’t sure”. She was not asked which one she “thought” she could identify from the pictures. Detective James Neuner of the Baltimore County Police Department testified that shortly before 8:30 P. M. on June 27, 1974, he arrested Deaver for the robbery.

He was led to Deaver by the license number of the Volkswagen supplied to him by Miss Joynes. The car was registered in Deaver’s name. After being advised of his Miranda rights, Deaver told Detective Neuner and Sergeant Gary Witt of the Baltimore County Police Department “that he and another named subject, the other defendant, Digioia, were in the alley [where Miss Joynes saw the Volkswagen] waiting for two other boys, and that the two boys came running down to the automobile hurriedly, and said that ‘Let’s step on it, let’s go’ ”. Deaver and Digioia were “already in the car” when the two boys ran up to it.

The police report indicated that at the time of his arrest Deaver had $17.41 in his possession, including one ten dollar bill and seven one dollar bills. Sergeant Witt testified that Deaver told him that he and Digioia were in the alley in the parked car at approximately 5:00 P. M. on June 27, 1974, “and two subjects came down the alley, got into the car. Digioia told him to pick them up, and they proceeded on around the alley and out”. Digioia was arrested shortly before 10:05 P. M. on June 27, 1974, at which time he had $27.00 in his possession — “two tens and seven ones”.

At that time he denied being with Deaver in the alley, saying that although he had been with Deaver from 1:30 P. M. to 3:30 P. M. he “hadn’t seen Deaver anymore that day”. The next day, however, after ²⁶⁷ consultation with counsel he gave a written statement to Detective Corporal Dennis Neugent of the Baltimore County Police Department. The statement was read into evidence without objection. The statement was as follows: “I woke up, approximately, 12:00 or 12:30, and called Norman McDermitt around 12:45.

I walked to Norman’s house, and stayed till around 1:15. Went home and ate lunch. About 1:30, Johnny Deaver and Norm and Chris and Mike drove up. We then went to Loch Raven Dam and drank beer till 3:45 to 4:15.

We all left, and John Deaver dropped me off at my house. About 4:50 that evening, Chris and John and Mike came back to my house, drove up to Oakleigh Road and finished the beer. Chris said, “I’m going to get some money, be back in a minute,” while we were parked behind A & P on Joppa Road. Five minutes later, Chris and Mike came running back to the car saying, “Let’s get lost.” I then realized something was wrong, and I told Johnny to drop me off at my house.

I arrived home about 5:15, and ordered one quarter barrel of beer from Rau’s; waited at my house until about seven until beer arrived; then went down to Norman’s house and drank until I was arrested. Question: Did you have any idea that a holdup was planned? Answer: No. Question: Did you, yourself, participate in the holdup? Answer: No. Question: Do you know who Mike and Chris are?

Answer: No. Question: Have you ever participated in a holdup or robbery before? Answer: No. Question: Have you told us everything you have been involved in? Answer: Yes. ²⁶⁸ Question: Did you see or receive any money from the holdup? Answer: No, I didn’t receive any money, but I saw an envelope with money in it.

Question: Describe Mike, Chris. Answer: Yes. Both about five foot ten inches, dark brown hair. Mike has short brown hair.

Chris has shorter length hair. Both about one hundred fifty pounds. Both wearing blue jeans. Mike had sunglasses.

Question: Did Deaver go right to the alley or did Mike and Chris tell him where to go? Answer: Mike and Chris told him where to go. Question: Did Mike or Chris ever mention the bakery? Answer: No. Question: Would you assume that Deaver had previous knowledge of where Mike and Chris were going to get the money?

Answer: No. Question: Why? ' Answer: I don’t think it was ever mentioned in the conversation. Question: Is there anything else you can add to this statement? Answer: No.” Maude Kieth testified on behalf of Digioia that she was working in the Budget Bakery at about noontime on June 27, 1974. She noticed four boys “in and out” of the shop at that time.

They were all not in the shop at the same time. None of them were in the shop when she went behind the counter to the desk where she opened the desk drawer to change a twenty dollar bill for a woman customer. She said, “ . . . I opened the drawer, and that’s where we keep a brown envelope, well, it’s really a brown manila envelope, and we kept the money in a white envelope in the brown manila envelope, and that’s where I got change.” She was not ²⁶⁹ present at the time of the robbery that took place five hours later in the day.

She gave no description of any of the boys she saw other than they were dressed in dungarees and tennis shoes. When asked by Deaver’s counsel, “Miss Kieth, was Mr. Deaver one of the boys there, to the