Gaylord v. State

Per Curiam. Appellant, James Gaylord, Jr., was tried in the Criminal Court of Baltimore before Judge James A. Perrott, sitting without a jury, on three indictments charging him with assault with intent to murder Helene Shearn; assault with intent to murder Ronnie King; and the rape of Helene Shearn. He was found guilty of assault upon Helene Shearn; assault with intent to murder Ronnie King; and the rape of Helene Shearn. ⁵⁷² Appellant was sentenced to twenty years in the Maryland Penitentiary for rape and ten years in the Maryland Penitentiary for assault with intent to murder, sentences to run concurrently, and sentence was suspended on his conviction for assault. There was evidence adduced at the trial from which the trier of the fact could find that on February 21, 1965, at about 12:15 a.m., Helene Shearn, accompanied by Perry Tilghman, returned to the apartment of her boyfriend, Ronnie (Romie) King, on the second floor at 1008 West Lanvale Street, in Baltimore City.

When they arrived they found appellant Gay-lord and King engaged in a loud argument. Appellant was demanding a drink and refused to leave. King finally succeeded in putting Gaylord out of the apartment, but he soon returned with a number of friends. When he was refused admittance, a loud clamor arose outside the door, with Gaylord demanding a jacket he claimed to have left in the apartment.

When it appeared that the door would be broken down, it was opened by King. Gaylord and his friends rushed in and a general fight then ensued. Gaylord attacked King with a knife, stabbing him in the back and right shoulder. Tilghman left and King fought for a time, but finally escaped and summoned aid.

He was hospitalized a week with his wounds. Helene Shearn was knocked to the floor unconscious. Her arm was broken and she sustained numerous injuries. When she regained consciousness, Gaylord, who remained in the apartment, stripped her clothes from her and proceeded to rape her.

When the police arrived, she was found semi-conscious, lying on her back on the bedroom floor, naked, and in a pool of blood. When Gaylord, who was outside the apartment, was brought into the room she identified him as her assailant. The sole question raised by appellant on this appeal is: Was there error committed by the trial court in connection with the testimony of Walter Shackleford and Dee Norris, witnesses called by the appellant ? At the conclusion of the State’s case appellant proceeded to call Walter Shackleford, a 19 year old youth, as his first witness.

After having been duly sworn, counsel for appellant re ⁵⁷³ minded Shackleford that he had spoken to him at the Baltimore City Jail and advised him of his rights. He then said to the witness, “I would like to re-explain this, to you today. You understand you do not have to testify today if you don’t want to?” He then told the witness that anything he said could be used against him and it might be possible for him to be indicted by the Grand Jury, and “that he might be giving evidence against himself to a serious, crime.” The court then intervened and inquired of the witness if he had counsel. When the witness answered in the negative, the court then indicated that he would appoint counsel for him, and gave appellant’s counsel the election to continue the case or withdraw the witness, to be recalled later after counsel had been appointed for him.

Appellant’s counsel advised the court that he would prefer to proceed and would take the witness out of turn. Whereupon the witness was withdrawn. Appellant then called Lee Norris, eighteen years of age, to the witness stand. After having been duly sworn, the witness was asked by appellant’s counsel his age and if he had a lawyer to represent him.

When he answered in the negative, appellant’s counsel stated to the court, “Your Honor, for the record, we may have again the problem that we had with the preceding witness. I say possibly.” The court then ordered the witness withdrawn until counsel could be appointed for him. Appellant’s counsel offered no objection to this procedure and proceeded to call his next witness, who was Caroline Smith, and who testified as to her version of what had taken place in the apartment occupied by Ronnie (Romie) King. After the completion of her testimony, the witness Walter Shackleford, with his court-appointed counsel present, was then recalled as a witness by the appellant.

After first stating that he had decided to testify, he was advised by his court-appointed counsel that the nature of his testimony could seriously tend to incriminate him, and that his advice was to refuse to answer on the grounds of self-incrimination. The witness then stated he wished to avail himself of his counsel’s advice. When asked by Appellant’s counsel, “Were you in the premises known as 1008 West Lanvale Street?”, the witness replied, “I refuse to answer because I seriously believe that any ⁵⁷⁴ answer I may give may tend to incriminate me.” Counsel for appellant then asked, “Would you give a like answer to every question I ask you?” The witness replied, “Yes, sir.” Whereupon appellant’s counsel said, “That being the case, I would have no choice but abandon my questioning.” The witness was then excused. Lee Norris was then recalled to the witness stand by appellant.

This witness was then advised by his court-appointed counsel that in his opinion the witness should not testify in this case, and that he should avail himself of his privileges under the Fifth Amendment. He was then asked by his court-appointed counsel if he wished to testify or follow his counsel’s advice on the grounds that he honestly felt it would incriminate him.