Hall v. State

Per Curiam. The appellant was found guilty by a jury in the Criminal Court of Baltimore of rape “without capital punishment” for which he was sentenced to 10 years and assault for which he was given a concurrent sentence of 3 years. On appeal he contends : I A full appellate review was precluded by the inadequacy of the transcript of trial. II An admission by him was improperly admitted in evidence.

Ill The lower court erred “in prohibiting the defense from eliciting probable meretricious reputation.” ³⁵⁹ IV The trial was not fair and impartial. V The verdicts were “against the evidence.” I The appellant claims that the transcript of the trial is inadequate because it does not contain the opening statements and closing arguments of the prosecutor and defense counsel. We note that the appellant was represented at the trial by the same counsel representing him on appeal. The record does not disclose that objection was made at trial to any remarks made during the opening statements and closing arguments, the appellant does not allege that there was objection made, and there is no claim now that the opening statements and arguments were in any way improper or prejudicial.

The appellant urges that they should have been transcribed in any event so he could conclude “if erroneous law, improper or incorrect marshalling of facts or inflammatory comments had been made.” We found a similar contention to be without merit in Wilkins v. State, 5 Md. App. 8, 17 . Further the appellant need only have requested at the trial that the opening statemetits and arguments be taken down by the court stenographer and transcribed to invoke Rule 32, Rules of the Supreme Bench of Baltimore City (1967). Nor did he seek to supply what he now asserts to be an omission in the record under the provisions of Md. Rule 1027. This contention affords no basis for reversal of the judgments.

II Officer John Webb, testifying for the State, said that he and another officer, working in a radio car, received a call to go to Wilmer Court near Pennsylvania Avenue to meet a Gary Jones. Upon arrival Jones stated “that he was assaulted and the man had taken his common-law wife by the arm and forced her down the alley.” The officer saw a “junked vehicle” in the rear of the 1300 block of Pennsylvania Avenue. The car was “rocking up and down.” He heard “sobbing noises * * * like someone was crying.” The officers went over to the car and saw the appellant and Ethel Lee Jones. “Mrs. Jones’ clothes were pulled up and the defendant’s pants were pulled down and they were in the process of having intercourse.” During the cross- ³⁶⁰ examination of Webb, defense counsel asked if the appellant said he had known the victim. The transcript reads : “A. Yes, he did say he had known her and when we— Q. Now, you don’t know for a fact whether he did or not ?

A. We questioned him and—■ Mr. Kroop (Assistant State’s Attorney) : Excuse me. He is trying to answer the question now. You may answer the question. A. We questioned him and he couldn’t— Mr. Mervis (defense counsel) : It’s not responsive.

Mr. Kroop: Yes it is, your Honor. A. —he couldn’t tell us her name or couldn’t tell us her address or anything, so—” The court had the reporter read the pending question, the previous answer and the colloquy which followed. “The Court: The question is do you know for a fact whether he knew the prosecuting witness before or not other than from the information you got from him ? A. No, not for a fact.” On re-direct examination of Webb the State asked: “Q. Now you were going to finish the question by stating the defendant told you that he knew her, is that correct ? A. Yes, he did tell us.

Q. And after he told you that, what if anything was asked of the defendant about the lady, Miss Jones? A. I asked the defendant if he knew her, tell us what her name was. He said that he didn’t know her name. I said, ‘Well, where does she live then?’ He said, ‘I don’t know that either.’ I said, ‘Well, if you know the lady, how come you don’t know her name and address ?’ He said, T don’t know.’ ” This testimony came into evidence without objection.

The appellant claims for the first time on appeal that the admissions ³⁶¹ were inadmissible because there was no compliance with the procedural safeguards of Miranda v. Arizona, 384 U. S. 436 . Where a confession or admission is received into evidence without objection, an objection cannot be made for the first time on appeal. Bitzer v. State, 4 Md. App. 415 ; Md. Rule 1085. Although the record does not disclose the precise moment when the appellant told the officer he knew the victim, it is apparent that he so stated shortly after the officers came up to the car, prompting the officer’s questions.

Miranda does not prohibit any inquiry at all by the authorities without prior warnings. We do not think that the appellant here was subjected to interrogation within the meaning of Miranda , considering that prompted the officer’s questions and the time, place and circumstances under which they were asked. See Gaudio and Bucci v. State, 1 Md. App. 455 . Ill During cross-examination of the victim defense counsel asked where she spent her time during the week.

She answered, “Mostly I stay home and across the street.” The State objected on the grounds of relevancy. The transcript shows the following colloquy on conference at the bench. “MR. MERVIS : The reason for this line of questioning is to try to show inconsistencies in her testimony later because my client claims that he has known this woman for a very brief period of time and he has had sexual relations before with her. THE COURT: You asked her already if she knew the defendant and she said ‘No’.

Now, if you want to ask her if she had sexual relations with the defendant before, you may ask her. But, I am not going to let you go into her complete background. Even a whore can be raped. 1 don’t know what you want to show to the jury, but 1 will let you have an opportunity to introduce any evidence which will have a bearing in this case which I understand to be consent, is that correct, from your opening statement ? MR.

MERVIS : Yes sir. THE COURT: But, I am not going to let you review ³⁶² her whole background. Anything that has any bearing on credibility as to whether there was rape here, I will let in, but I can’t see— MR. MERVIS: I am trying to establish that by virtue of the fact she should have known— THE COURT: What?

MR. MERVIS: —the defendant and the fact he frequented this Rainbow Lounge. THE COURT: All you have to do is ask her if she knows him and if she says no, you can let him testify and any other witnesses who can contradict her. All right.

MR. MERVIS: May I additionally mention,