Hall v. State

Thompson, J., delivered the opinion of the Court. 'James Curtis Hall, the appellant, was convicted of sodomy by the Circuit Court for Anne Arundel County, Judge Matthew S. Evans presiding without a jury. The sentence imposed was two years consecutive to the sentence which Hall was then serving. The questions presented on appeal concern the admissibility of certain evidence and the sufficiency of the evidence to support the verdict. The testimony can be summarized as follows : James Stuart Aberts, age 23, testified that while he w^as incarcerated at the Maryland House of Correction on January 28, 1967, a riot broke out in the institution at or about the hour of 4:30 to 5 :00 p.m.

Some of the prisoners seized keys from the guards and unlocked the cell doors of the remaining prisoners. Aberts testified that after his cell door was opened he walked out on the tier and when he was passing cell No. 4, which adjoined his own, four persons, of whom Hall, the appellant, was not one, attacked him and knocked him unconscious. When he became conscious he was lying on his stomach on a bed in cell No. 4 with a man, in a supine position, engaged in a sexual assault upon him. While the act continued one of the other persons present yelled “Who is on him now” when another unknown person stated that “Billy Hall” was on the victim.

(The record shows that Billy Hall was the nickname commonly used for the appellant). Whereupon the person on his back yelled to the others to quit hollering his name out and told the victim ⁶⁰¹ that he had better forget his name. Aberts further testified when he heard Hall’s voice he recognized it because he had had an argument with him on two separate days some two weeks prior thereto saying “He’s got a way of talking, the way they put a lot of drive in their tongue, it is just familiar, I knew it. I’d argued with him before and I knew that was his voice.” He further testified that the lights were out and it was too dark for him to identify Hall except by his voice.

Ronald Kurz, a correctional officer at the Maryland House of Correction, about 24 hours after the riot, went to the medical observation area of the House of Correction where Hall was being held for medical examination and informed Hall that someone was there to see him and requested that he put on his clothes. He accompanied Hall to a room where several bundles of clothes of persons who were undergoing medical examination were in neat piles around the room. Hall looked over the piles of clothing until he found what was obviously his and put on undershorts, trousers and shoes. After the officer observed that the shoes fitted, he told Hall that he could stop getting dressed because the man who wanted to see him was already there.

Sergeant Snyder of the Maryland State Police, who was standing at the door, then asked Hall about the stains on the clothing which were located on front of the trousers and around the fly area of the undershorts. Hall was directed to undress and Sergeant Snyder took the clothes. On cross-examination Kurz stated that the undershorts showed they were size 34, that the belt was size 32, and the trousers measured at the trial were 30J4 inches around the waist. He further testified that the clothing Hall put on fitted him as well as any other inmate’s clothes at the institution.

Sergeant Snyder confirmed the testimony of Correctional Officer Kurz and stated that when he asked Hall about the obvious blood stains on the front of the trousers that Hall responded that a lot of people had gotten blood on their trousers during the riot. An examination of the trousers at the laboratories of the Federal Bureau of Investigation showed that blood stains were on the trousers but not on the shorts, and that seminal stains were on both the trousers and the undershorts. John L. Beard, who at the same trial was convicted of as ⁶⁰² sault in connection with a sodomy attack not directly connected with the present appeal testified for the defense that he was Hall’s cellmate and that Hall had stayed in his own cell throughout the riot, and further that he, Beard, had spent much of the time directly in front of their cell talking with Robert Earl Paesch. Hall testified in his own defense and stated that he spent the entire time of the disturbance in his cell with Beard; that he saw Robert Earl Paesch during the riot.

He stated that he had argued with Aberts some two weeks before on two separate days and on the second occasion concluded by saying “Well, we talked and wound up shaking hands and I left, and that was all in December, that was the last him and I had any words or any kind of relationship.” He stated that the clothes which he wore to the medical observation area were the same clothes that he had worn during the riot, but that the clothes introduced into evidence were not his except for the belt. Hall testified that he wore size 30 undershorts, and that he remade all of his trousers in the tailor shop so that they fitted him better than otherwise they would have. Hall stated that at the time he was called upon to dress in the area he put on only pants; that he did not put on shoes or undershorts; that he had not seen any of the clothes, except for the belt, that he wore to the medical room; and that the first time he had seen the belt was the day of the trial. In rebuttal the State called Robert Earl Paesch who denied that he had seen Hall at any time during the riot.

Hall contends on appeal that the court committed error in admitting the clothing into evidence because it was not sufficiently connected with him. He argues that its connection is questionable because it might have been mixed up with clothing of other prisoners which was also in the room at the time he was called upon to dress. This contention causes us little concern. All that is required to connect an exhibit to an accused is reasonable probability.

Veihmeyer v. State, 3 Md. App. 702 , 240 A. 2d 649 . Hall was directed to put on his clothes, and after looking over the piles of clothes he put on those admitted into evidence. The shoes fitted him and the other clothes fitted him as well as the clothes of other inmates fitted them. ⁶⁰³ Hall further contends that it was error for the trial court to admit the “hearsay” testimony concerning the conversation between unidentified persons and the criminal while the crime was in progress. Hall complains specifically of the conversation between the unidentified persons rather than the words of the criminal, but we fail to see how the words of the criminal would be at all intelligible unless the words of the bystanders were also admitted.

The Court of Appeals in the case of Robinson v. State, 57 Md. 14 gave an excellent discussion of what evidence constitutes res gestae. On a charge of forcibly abducting four children of one James McGee, the accused proffered a witness who stated that when the accused and Mrs. McGee came to her house to spend the night she told the witness, out of the presence of the accused, that she had made up her mind not to live with her husband any longer and had left home and taken the children with her and had gotten the accused to drive the wagon. The Court reversed because of the refusal of the trial court to admit that testimony and quoted with approval 1 Taylor on Evidence § 521 as follows: “ ‘Certain other declarations and acts are admitted as original evidence, being distinguished from hearsay by their connection with the principal fact under investigation. “ ‘ The affairs of men consist of a complication of circumstances so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstance, and in its turn becomes the prolific parent of others, and each, during its existence, has its inseparable attributes, and its kindred facts, materially affecting its character, and essential to he known, in order to a right understanding of its nature.

These surrounding circumstances may always be shown to the jury along with the principal fact, provided they constitute parts of what are termed the res gestae, and whether they do so or not must in each particular case be determined by the judge in the exercise of his sound discretion, according to the ⁶⁰⁴ degree of relationship which they bear to that fact;’ and then after giving cases in which such proof was admitted, the author goes on to say: 'So also where a person enters upon land in order to take advantage of a forfeiture to foreclose a mortgage, to defeat a disseisin or the like; or changes his actual residence or domicile, or is upon a journey or leaves his home, or returns thither, or remains abroad, or secretes himself, or in fine does any other act material to be understood; his declarations made at the time of the transaction, and expressive of its character, motive or object are regarded as “verbal facts,” indicating a present purpose and intention, and are therefore admitted in proof like any other material facts.’ ” Professor Wigmore in 6 Wigmore Evidence § 1791 says that utterances serving to identify are admissible as every other circumstance of identification would be under his rule that verbal acts are admissible because the hearsay rule is not applicable. 6 Wigmore, Evidence § 1745. In 1 Wharton Criminal Evidence § 279 (12th Edition) the strict rule is as follows : “When strictly defined, res gestae refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or immediately after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement.” At page 627 he cites Cohen v. State, 173 Md. 216 , 195 A. 532 , cert. denied, 303 U. S. 660 , 58 S. Ct. 764 , 82 L. Ed. 1119 as authority for