Fletcher v. State

Anderson, J., delivered the opinion of the Court. Kenneth Edward Fletcher and George Winfield Smith, Jr., were found guilty of storehousebreaking and stealing goods to the value of five dollars or upwards in the Criminal Court of Baltimore by Judge William J. O’Donnell, sitting without a jury, on March 7, 1968. Each was sentenced to three years imprisonment. The sentence of appellant Smith was to be consecutive to a sentence to be imposed if he was found guilty of parole violation.

On appeal, the questions raised were as follows: By appellant Smith: 1. Was the appellant precluded from full appellant review because the court stenographer did not transcribe certain bench conferences and arguments of counsel? 2. Did the court err by imposing sentence consecutive to a violation of probation yet to be determined? By both appellants Smith and Fletcher: 3.

Was the evidence sufficient to support the court’s verdict of guilty of breaking and entering, coupled with larceny? By appellant Fletcher: 4. Was the appellant Fletcher illegally arrested? On November 17, 1967, at about 5 :00 a.m., an unidentified ²²² passerby told the police of the Southern District of Baltimore that two colored men had just broken the Princess Shop window at 1118 Light Street, grabbed clothes off the mannequins and were running west on West Street.

He gave no description of the men. Lieutenant Michael Ford immediately proceeded to search the area in his car. On West Cross Street he observed two men moving rapidly with bundles in their arms. Upon closer view they appeared to be carrying ladies’ coats.

Lieutenant Ford followed them to the 200 block of Plum Alley. The men turned and the Lieutenant observed that one, whom he identified in court as the appellant Fletcher, was wearing green trousers and a dark raincoat. The other had on a black shirt, a waist-length blue jacket, and gray trousers. Slamming on his brakes, the Lieutenant removed his glasses, and gave chase on foot, but lost sight of the two men when they tried to avoid him and entered the backyards of an adjacent row of houses.

The officer then called for assistance, and directed one of the responding cars to the west side of the Hamburg Street bridge. There Officer Anthony Butner, acting on instructions from Lieutenant Ford to apprehend two colored males in dark clothing, arrested the two appellants while they were crossing the bridge. At the time of their arrest the appellants were carrying nothing. When Lieutenant Ford approached the appellants on the bridge, while they were in custody of Officer Butner, he observed that Smith’s gray trousers were torn above the right knee and he had a larceration of the leg at that place.

Lieutenant Ford testified that the two men on the bridge were arrested within seven to ten minutes from the time he lost sight of the two men who entered the backyards of the nearby houses. He was certain of his identification of Fletcher as one of the two men he had seen carrying clothing. Lieutenant Ford recovered a bundle of ladies’ coats, identified at trial as those taken from the Princess Shop window, in the rear yard of 1032 South Sharp Street, a house adjacent to the place where the two men he first observed had disappeared, and about three and a half blocks from the bridge. Appellant Fletcher declined to testify.

However, George Smith' testified that he spent seven hours, from the evening ²²³ November 16, 1967 until 5 :00 a.m. the following morning, in the company of the appellant Fletcher at a restaurant known as Nemo’s located at Leadenhall and Hamburg Streets. He claimed that Fletcher left the restaurant at about 5:00 a.m. with a man named James, who had been discussing women’s coats, and that he left five minutes later to go home. He said Fletcher came up behind him on the bridge and that Officer Butner then arrested them. I Appellant first contends that he was precluded from a full appellate review by the inadequacy of the trial transcript. ,Tn support of this contention he argues that the failure of the court stenographer to transcribe the bench conferences, argument of counsel on motion for acquittal at the close of the State’s evidence, and final arguments of counsel both for appellant and the State denied him his right to full appellate review of his trial and conviction.

A careful review of the record discloses no request for reporting of bench conferences or arguments of counsel and no objection on the part of the appellant for failure to do so. Rule 32 of the Supreme Bench of Baltimore City provides that: “In the trial of a case, the court stenographer shall take down any opening statement or argument of counsel when requested to do so by any party or his attorney.” In the instant case no request was ever made by the appellant or his attorney that the court stenographer take down any opening statement or argument of counsel or any conferences at the bench. In fact, during the trial, there were only two bench conferences, one of which reveals that appellant’s counsel indicated to the court that he would be unable to appear in court the next morning because of a prior engagement, and the case was carried over until 1:30 p.m. with the consent of the appellant. While the argument on the motion for acquittal, made at the end of the State’s case by appellant’s counsel, was not transcribed, there being no request therefor, nevertheless, the trial judge explained in detail why the motion was denied.

Arguments of counsel do not ordinarily raise questions on appeal and are not normally transcribed. Wilkins v. State, 5 Md. App. 8 , 245 A. 2d 80 . Here there was no showing by appellant of