Hartley v. State

Anderson, J., delivered the opinion of the Court. In March of 1961, appellant, John Marshall Hartley, was jointly indicted with his wife under five indictments charging them with armed robbery and allied counts. On April 28, 1961, appellant pleaded guilty before Judge Joseph L. Carter in the Criminal Court of Baltimore under each of the first counts of Indictments Nos. 991 through 995, charging armed robbery of several loan offices. He was sentenced to a term of twenty years imprisonment in the penitentiary for each conviction, the first two terms to run consecutively and the other three to run concurrently with the second one.

The cases against his wife were stetted. On January 31, 1964, Hartley filed a petition under the Uniform Post Conviction Procedure Act. He contended, among other things, that he had been denied the right to appeal his 1961 convictions and his pleas of guilty to the charges in the several indictments had been involuntarily made. A hearing was held before Judge Edwin Harlan on May 5, 1964.

Judge Harlan granted Hartley a delayed appeal after finding that his attempt to appeal was delayed by circumstances beyond his control, but made no factual findings or conclusions of law as to his other contentions. The Court of Appeals therefore remanded the case back to the Criminal Court of Baltimore, without affirmance or ⁴⁵⁴ reversal, for an evidentiary hearing and a factual finding as to whether the pleas of guilty made by Hartley on April 28, 1961 were voluntarily made. Hartley v. State, 238 Md. 165 , 208 A. 2d 72 . On remand Judge Carter heard the case and on October 19, 1965, filed an opinion granting the appellant Hartley a new trial.

However, before the appellant could be retried, the Court of Appeals handed down its decision in Schowgurow v. State, 240 Md. 121 , 213 A. 2d 475 . As a result of the Schowgurow decision, new indictments were returned against appellant, same being indictments Nos. 6398 through 6402, each charging him with robbery with a dangerous and deadly weapon and allied counts. He entered pleas of not guilty by reason of insanity at the time of the commission of the crime, and not guilty, to each indictment. On November 14, 1966, appellant was tried in the Criminal Court of Baltimore by Judge James A. Perrott, sitting without a jury, and was convicted under the first count (robbery with a dangerous and deadly weapon) of indictments Nos. 6398, 6400, 6401 and 6402, and a Motion for Judgment of Acquittal was granted in indictment No. 6399 when the State was unable to produce its chief witness.

He was sentenced to a term of twenty years in indictment No. 6398 and to a term of ten years in each of ,the other three indictments (Nos. 6400, 6401 and 6402), to run consecutively with the sentence imposed in indictment No. 6398 and with each preceding indictment, for a total of fifty years, to be served in the Maryland Penitentiary, sentence in indictment No. 6398 to begin as of March 13, 1961. From his convictions, he now appeals to this Court. The State’s first witness was Lewis H. McKnight, Jr., who testified that on November 28, 1960 he was employed by the State Finance Company on Harford Road in Baltimore. On that date, at approximately 5 :30 o’clock p.m., as he was preparing to close the office, he was called to the counter by the cashier.

There he was faced by the appellant, who produced an automatic revolver, pointed it in his face, and demanded the money. McKnight gave him all the money in the cash drawer amounting to approximately $260.00. Whereupon appellant, after warning McKnight and the cashier not to do anything, left. He posi ⁴⁵⁵ lively identified appellant in the courtroom as the robber, and had previously identified appellant in a police line-up.

This was the substance of the testimony in indictment No. 6400. The second witness, Mrs. Carole N. Ferrara (formerly Carole N. Lugenbeel), testified that on November 11, 1960, she was employed at the Circle Credit Company in Baltimore as a “Girl Friday”. The company’s office was located on the second floor at 1059 Hillen Street. On that date, about 4:30 o’clock p.m., appellant entered the office, pulled a gun out of his pocket, told her this was a hold-up and to give him the money.

She gave him all the money in the cash drawer amounting to $50.96. Whereupon, after cautioning her, he turned and left. She made a positive identification of appellant in the courtroom, and had previously identified him in a police line-up. This was the substance of the testimony in indictment No. 6938.

The same witness, Mrs. Ferrara, further testified that on November 23, 1960 she was working at the Circle Credit Company and that at approximately 11:30 o’clock a.m. appellant entered the office and came behind the counter where she was alone. The witness recognized appellant from the previous holdup, and as he partially removed his gun from his pocket, she told him to put it back in his pocket. She then gave him the money amounting to approximately $100.00. He made her, open the safe in which there was a small amount of cash.

Before he left, he made her enter the bathroom, closed the door and left. She identified appellant in court as the robber, and had previously identified him in a police line-up. This was the substance of the testimony in indictment No. 6402. The State next produced Raymond F. Delahanty, who testified that he was the manager of the Aetna Finance Company and on December 5, 1960, he was at the Highlandtown office located at Eastern Avenue and Conkling Street in Baltimore.

About 5 :45 o’clock p.m., he received a buzz to come to the front office. There he found appellant behind the counter and the cashier, Jo Ann Fedi, braced against the wall. Appellant was armed with a pistol, which he pointed at him and told him to “stand right there.” The cash drawer was open and appellant grabbed up all the money amounting to between $670 and $700. After he had cleaned out the drawer, he asked if there was any ⁴⁵⁶ more money.

Delahanty told him, “that is it.” Whereupon, he told everyone to stay inside and, as he passed Delahanty, he said, “Especially you.” He then left by the only entrance leading to the stairs on Conkling Street. Appellant was positively identified by the witness in the courtroom. He had previously identified appellant at the preliminary hearing. He did not attend the line-up.

The State’s last witness was Bryan Bruck who, on December 5, 1960, was working in the collection office of the Aetna Finance Company at the time of the hold-up making phone calls. At that time he was struck on the head by a gun and as he stood up, there was a man facing him with a gun. He testified as to the details of the robbery, but was unable to make a positive courtroom identification. This was the substance of the testimony in indictment No. 6401.

Appellant raises eight contentions on his appeal. 1. That the State of Maryland subjected appellant to double jeopardy and thus violated his constitutional rights. 2. That the court should have suppressed all evidence (witness identification) because it was illegally obtained by an illegal arrest; and should have granted his pretrial motion for declaration of an illegal arrest. 3. The court should have excluded all evidence because it was -i obtained during an unreasonable delay between the arrest and preliminary hearing in violation of the Mallory Rule and his federal constitutional rights. 4.

That the court should have dismissed the cases because the appellant could not be given a fair trial because of Rights violations of the federal constitution. 5. That the court should have dismissed the indictments because the Criminal Court of Baltimore lacked jurisdiction, and the indictments were invalid because of Federal Constitutional Rights violations. 6. That the appellant failed to receive a fair and speedy trial as guaranteed by the Constitution. 7. That the court should have granted appellant’s Motion for Judgment of Acquittal under Indictment No. 6401. 8.

That the court erred by imposing a fifty year sentence on four indictments convictions, when at his original trial in 1961 the sentence was forty years for all five indict ⁴⁵⁷ ments, and that this was a violation of the 14th Amendment of the United States Constitution. I Appellant’s first contention is that he was placed in double jeopardy as a result of his retrial and this was a violation of his constitutional rights. We find no merit to this contention. It has been repeatedly held in this State that the rule of double jeopardy is not a constitutional right but exists here as a matter of common law.

Robb v. State, 190 Md. 641 , 60 A. 2d 211 (1948); Ruckle v. State, 230 Md. 580 , 187 A. 2d 836 (1963). The double jeopardy protection of the Fifth Amendment is not transmitted to the States through the Fourteenth Amendment. Wampler v. Warden, 231 Md. 639 , 191 A. 2d 594 (1963); Nixon v. Director, 1 Md. App. 14 , 226 A. 2d 352 (1967). In the event of a finding that the trial court had committed error, a new trial may be granted without infringing upon the common law rule against double jeopardy.

Ruckle v. State, supra; Gray v. Director, 2 Md. App. 412 , 234 A. 2d 783 (1967). Here appellant’s retrial was brought about at his own instance as a result of his petition filed under the Uniform Post Conviction Procedure Act some three years after his original conviction which resulted in the granting of a new trial for the identical same offenses to which he had previously plead guilty. In United States v. Tateo, 377 U. S. 463 , 84 S. Ct. 1587 , 12 L. Ed. 2d 448 (1964), the Supreme Court said that a defendant whose conviction had been set aside because of a collateral attack was not placed in double jeopardy. The Tateo case relied upon United States v. Ball, 163 U. S. 662 , 16 S. Ct. 1192 , 41 L. Ed. 300 (1896).

Moreover, in Tate v. State, 236 Md. 312 , 203 A. 2d 882 (1964), the Court of Appeals held that when a defendant had been tried on an indictment or information that is invalid he is not in jeopardy, and may be indicted and tried again. This Court adopted the rule laid down in Tate v. State, supra, in Sadler v. State, 1 Md. App. 383 , 230 A. 2d 372 (1967); Benton v. State, 1 Md. App. 647 , 232 A. 2d 541 (1967); Boone v. State, 2 Md. App. 80, 233 A. 2d 476 (1967); Blake v. State, 2 Md. App. 492, 235 A. 2d 569 (1967). ⁴⁵⁸ Here the appellant, after being awarded a new trial, but before his cases were tried, elected to have the indictments involved in his first trial declared invalid under Schowgurow v. State, 240 Md. 121 , 213 A. 2d 475 (1965) and companion cases. He cannot now claim double jeopardy as a result of his trial upon the new indictments for the same offenses of which he was previously convicted. See also Gee v. State, 2 Md. App. 61, 233 A. 2d 336 (1967) where the facts were similar to the facts in the instant case.

II Appellant’s second and third contentions relate to the suppression of all the evidence because he alleges that it was illegally obtained as a result of an illegal arrest and also should be excluded because of an unreasonable delay between his arrest and the preliminary hearing in violation of the Mallory rule and his constitutional rights. Both are equally without merit. The trial court deferred ruling on the motion to suppress pending a hearing on the evidence. Appellant contends that the in-court identifications of the appellant and testimony as to the identification of him at the lineup and preliminary hearing were improperly admitted in evidence because appellant was illegally arrested and because he was not represented by counsel at the lineup immediately following his arrest.

This Court has held that Mapp v. Ohio, 367 U. S. 643 , 81 S. Ct. 1684 , 6 L. Ed. 2d 1081 (1961) did not compel the exclusion of testimony as to the identification of an accused in a lineup' as such testimony was not “tangible” evidence which was the fruit of an unlawful search. Nadolski v. State, 1 Md. App. 304, 308 , 229 A. 2d 598 (1967). It is not here alleged that the lineup was either unfair or unreliable and there is nothing per se unconstitutional about a police lineup'. Moreover, since the lineup was held in March of 1961, prior to the decisions of the United States Supreme Court in United States v. Wade, 388 U. S. 218 , 87 S. Ct. 1926 , 18 L. Ed. 2d 1149 , and Gilbert v. California, 388 U. S. 263 , 87 S. Ct. 1951 , 18 L. Ed. 2d 1178 , decided June 12, 1967, the legal principles enunciated in those cases do not apply and the presence of counsel was not required.

Stovall v. Denno, 388 U. S. 293 , 87 S. Ct. 1967 , 18 L. Ed. 2d 1199 (de ⁴⁵⁹ cided the same day). We find, therefore, that the in-court identification and the testimony as to the identification of the appellant at the lineup and preliminary hearing were properly admissible under the rules of law then applicable even assuming the arrest was illegal. Tender v. State, 2 Md. App. 692, 696, 697, 237 A. 2d 65 (1968). Appellant’s argument that the court should have excluded all the evidence, including identification evidence, because of an unreasonable delay between the arrest and the preliminary hearing in violation of the Mallory rule and federal constitutional rights has no merit.

The so-called Mallory rule as enunciated in Mallory v. United States, 354 U. S. 449 , 77 S. Ct. 1356 , 1 L. Ed. 2d 1479 (1957) is a federal rule which applies only to federal prosecutions and has no application to prosecutions in State courts as of this date. Culombe v. Connecticut, 367 U. S. 568, 601 , 81 S. Ct. 1860 , 6 L. Ed. 2d 1037 (1961); Bean v. State, 234 Md. 432, 444 , 199 A. 2d 773 (1964). Moreover, the facts in Mallory were vastly different from the facts here, where the objection relates to identification evidence alleged to have been obtained between the date of the arrest and the preliminary hearing. While it appears that the appellant was given a preliminary hearing shortly after his arrest, under Maryland law, a preliminary hearing is not required.

McCoy v. Warden, 1 Md. App. 108, 114 , 227 A. 2d 375 (1967); Fabian v. State, 3 Md. App. 270, 281 , 239 A. 2d 100 (1968). Also there is no constitutional right to counsel at the time of a person’s arrest or at a preliminary hearing where no plea is taken. Timbers v. State, 2 Md. App. 672, 236 A. 2d 756 (1968); State v. Hardy, 2 Md. App. 150, 233 A. 2d 365 (1967). Assuming that appellant’s arrest was illegal, an illegal arrest does not affect the jurisdiction of the court, is not ground for dismissing an information or indictment, and does not preclude trial and conviction for the offenses.

Matthews v. State, 237 Md. 384 , 206 A. 2d 714 (1965); Nadolski v. State, supra; Powell v. State, 1 Md. App. 495, 498 , 231 A. 2d 737 (1967). During the course of the trial no damaging statements made by appellant or physical evidence was introduced by the State. Therefore, the trial court properly overruled appellant’s motion ⁴⁶⁰ to suppress. Matthews v. State, supra; Nadolski v. State, supra; Britton v. State, 2 Md. App. 285, 234 A. 2d 274 (1967).

Ill Appellant’s fourth and sixth contentions relate to denial of due process and failure to receive a fair and speedy trial, and may be considered together. Appellant’s argument under his fourth contention relates to the lapse of time between his original conviction and his second trial. He was first tried on April 28, 1961 for offenses that occurred in November and