Gerstein v. State

Orth, J., delivered the opinion of the Court. The threnody of Sidney Gerstein makes clear his dissatisfaction with the judgments rendered against him at his jury trial in the Criminal Court of Baltimore* 1 but for ³²⁵ the most part leaves clouded the reasons why he feels they should be reversed. When his prolix brief is alembicated there remain three contentions presented by specific questions and a gaggle of miscellaneous claims more or less indicated under the general question, “Did the trial court commit reversible error?” We consider the three contentions under the specific questions and such of the claims under the general question as are set out with sufficient specificity as to warrant attention. We first observe that we have been mindful, as appellant “implores” us, of “the totality of the trial atmosphere” in our “review of assigned error.” We have reviewed the record and find that the trial was conducted under the “constraints of the rules of procedure and evidence” by an impartial judge with due regard for the protection of appellant’s “rights, dignity and personal integrity.” We find no substance in appellant’s general indictment of the proceedings against him.

The Lack of a Preliminary Hearing Appellant moved prior to trial to dismiss the indictments against him on the ground that he had not received a preliminary hearing to which he was entitled as a matter of right under Code, Art. 26, §§ 107-129. He also moved to stay the proceedings until a preliminary hearing had been held. He was arrested on 13 December 1968, and according to his brief, taken in an ambulance to the hospital, treated for a head injury and then went home ³²⁶ having been released on bail. On 23 December he was presented.

Capias was issued and returned cepi bail. Indictments were returned on 9 January 1969. Maryland has no general law requiring a preliminary hearing and we have held that an accused does not have a constitutional right to one. Clemons v. State, 9 Md. App. 127 ; Graham v. State, 6 Md. App. 458 .

We find nothing in Coleman v. State of Alabama, 90 S. Ct. 1999 to indicate that a preliminary hearing is constitutionally mandated. At the common law when an accused was brought before the magistrate, it became the magistrate’s duty to conduct a hearing and, after due investigation, to discharge, bail or commit him. If the magistrate determined .that there was probable cause to suppose the accused guilty, he was held for action of the grand jury, commitments for trial being certified to the court having jurisdiction to try the offense charged. See Hochheimer’s Criminal Lav), 1st Ed., §§ 105-108, pp. 75-76.

Code, Art. 26, §§ 107-129 concern the Municipal Court of Baltimore. It is the duty of every judge sitting in the criminal division thereof before proceeding to hear, try and determine any charges within the jurisdiction of the court, to inform the accused of his right to a jury trial. If he prays a jury trial “the judge shall thereupon determine whether probable cause exists for believing that said person is guilty” and if it be so determined, the judge shall forthwith commit him or hold him for bail for trial in the Criminal Court of Baltimore. If the judge determines that probable cause does not exist, the charges shall be dismissed.

The same procedure is followed when in such cases the State may and does pray a jury trial. § 111 (a) and (b). When the accused is charged with an offense beyond the jurisdiction of the Municipal Court of Baltimore City the procedure to be followed is prescribed by § 115: “Whenever any person shall be arrested in the City of Baltimore upon any criminal charge, or for the violation of any law of this State, or of any ordinance of the mayor or city council of Baltimore [other than motor vehicle charges] it ³²⁷ shall be the duty of the police officer or constable making such arrest, or in whose custody the person arrested may be, to take such person before a judge of the criminal division of the Municipal Court of Baltimore City, and if any offense charged against the person arrested is beyond the jurisdiction of the court, the judge of the criminal division shall sit as a committing magistrate with the same powers and duties as were invested in and imposed upon the justices of the peace assigned to the station houses of Baltimore City on the day preceding the effective date of this subtitle, provided that all persons charged with murder, manslaughter, or manslaughter by automobile shall be taken by the police officer making the arrest, or in whose custody the person arrested may be, before a judge of the criminal division of the Municipal Court sitting at that location of the criminal division [except the housing part] which is closest to the office of the State’s Attorney of Baltimore.” Chapter 616, Acts 1961, which enacted the law codified as Art. 26, § 115, at the same time repealed § 428 of the Charter and Public Local Laws of Baltimore City (1949 Ed.) as amended by Ch. 458, Acts 1951. Section 115 in its provision that the Municipal Court Judge would sit as a committing magistrate “with the same powers and duties as were vested in and imposed upon the justices of the peace assigned to the station houses of Baltimore City on the day preceding the effective date of this subtitle”, was referring to § 428 of the Local Laws of Baltimore City. As amended it was in substance the same as § 115 except that the arrestee was to be taken before a justice of the peace.

The justice of the peace was directed “to take jurisdiction of the case and dispose of such case promptly.” The justice of the peace disposed of such cases by trying those in which he had jurisdiction, except when •a jury trial was prayed, in which event he conducted a ³²⁸ preliminary hearing, and as to those cases in which he did not have jurisdiction he conducted a preliminary hearing under the common law authority. 2 The dictates of § 115, however, must be considered in the light of § 109 (c) (3). It reads: “The powers of the grand jury of Baltimore City as the same existed on the day immediately preceding the first Monday in May 1961, to present any person for trial in the Criminal Court of Baltimore City as the result of any investigation initiated on its own motion, or that of any of its predecessors, shall not in any way be limited, abridged, or circumscribed by this section [prescribing the jurisdiction of the Municipal Court]. Any such presentment by the grand jury of Baltimore City shall be conclusively presumed to have been made in accordance with the provisions of this subsection.” It is clear that if the grand jury of Baltimore City presents an accused who has not been taken before a judge of the Municipal Court and either tried on a charge under the jurisdiction of that Court or, when that court does not have jurisdiction of the offense, held or discharged after a preliminary hearing, it is conclusively presumed that the presentment was made by the grand jury as the result of an investigation initiated on its own motion. As the right to do so may not be “limited, abridged, or circumscribed” by the Municipal Court Act, the action of the grand jury is superior to any statutory right to a preliminary hearing provided by § 115.

Here appellant lost any right he may have had under § 115 to a preliminary hearing on the charges against him when the grand jury of Baltimore City presented him on. the charges. Therefore, the lower, court did not ³²⁹ err in denying the motion to dismiss the indictments on the ground he had not had a preliminary hearing, nor did it err in denying the motion to stay the proceedings until a preliminary hearing was held. The Motion for a Mistrial During the trial there was a question whether a police officer would have been able to recognize appellant’s voice. Laying a foundation that the officer in the past had an opportunity to talk with appellant and to hear his voice the officer was asked by the State the total times he had conversed with appellant and the length of the conversations.

The officer, answering, said, “Well in 1962 I made a raid there.” Defense counsel objected and moved that it be stricken. The court said: “Yes, strike that, the jury will disregard reference.” Appellant moved for a mistrial. The court denied the motion saying: “The jury will disregard the reference the Lieutenant just made to how he happened to be talking to the defendant but the question is how long did you talk to him on that occasion and don’t repeat the occasion Lieutenant.” We do not think it unreasonable to conclude that the jury could and did follow the judge’s instructions to disregard the information. See Bruton v. United States, 391 U. S. 123, 135 .

The determination whether or not to grant a mistrial is within the sound discretion of the trial court. Parker v. State, 7 Md. App. 167 ; Carroll v. State, 3 Md. App. 50 . We see no abuse of discretion here, particularly in view of the judge’s prompt admonition to the jury. Shotkosky v. State, 8 Md. App. 492 ; Baldwin v. State, 5 Md. App. 22 .

The Alleged Assistance of the Prosecution by the Trial Court Appellant recognizes that the trial court may properly intervene to see that full facts on an issue are brought out in an attempt to assure a correct decision. Jefferies v. State, 5 Md. App. 630 . We find the actions of which appellant complains to have been no more than that. We do not believe that appellant’s charges that the court instructed the prosecutor on trial procedures, on presenta ³³⁰ tion of evidence, and on rights concerning witnesses and that it interposed sua sponte cautions and called recesses-have real substance, assuming them to be factually correct, when viewed in the frame of reference in which the' particular action was taken.

We do not find that they represent an abuse in the wide discretion the judge has in the conduct of a trial at which he presides. See Plank v. Summers, 203 Md. 552 ; Stewart v. State, 4 Md. App. 565 . Rather the transcript of the proceedings reveals only the patient efforts of the trial court in the face of an aggressive defense to protect appellant’s rights, to insure that only such evidence as was properly admissible would be received and to see that the full facts supporting both the position of the State and of appellant would be brought before the jury. We hold that the trial court did not improperly assist the prosecution to obtain a conviction.

The Search Warrant The Claim that it is a General Warrant The warrant commanded the search of five persons and “the entire premises 2300 Barclay Street” for lottery slip» and related gambling paraphernalia. The five men were particularly described as follows : “a c/m/5'8", 40 years, 160 lbs, med. brown complexion, known as First man; c/m/5'10", 45 years, 180 lbs, med. brown complexion known as Second man; c/m/40 years, 5T0", 175 lbs, dark bm. complexion, known as Third man; a w/m/-45-50 years, almost bald headed, glasses, 5T0", 215 lbs, herein known as the Fourth man; c/m/-5T0", 170 lbs, 30 years, med. brown complexion, known as Fifth man.” The premises were described as “a two-story brick building painted red on front, gray faded on the south side of this corner building. The wood is painted red and green. The first floor formerly housed a grocery store, as is told by the sign over the first floor level, which reads Ger-stein’s Groceries.

The front/side