Johnson v. State

PER Curiam (Prettyman, J., dissents in part). On January 18, 1966, after a favorable ruling by the Court upon his motion for severance, Robert Lee Johnson was found guilty by a jury on all counts of a five-count Indictment. The First Count charged the Appellant, together with a certain Robert Leo Webster, Robert Marion Owens and Ellsworth Leroy Stewart, with assault with intent to rape a certain Maureen Ruby Dye on September 8, 1965; the Second Count charged the Appellant, together with said named co-defendants, with assault and battery upon the said Maureen Ruby Dye on the same date; the Third Count charged the Appellant with assault, together with the said named co-defendants, upon one ²³⁹ Barabara Bernadine Cordell, on the said date; the Fourth Count charged the Appellant, together with the said named co-defendants, with assault and battery upon one Lamont Neil Bolden on the same date; and the Fifth Count charged the Appellant, together with the said named co-defendants, with assault and battery upon one Willis David Moore, on the said date. On April 22, 1966, the Court sentenced the Appellant to be confined in the Maryland Penitentiary for a period of twenty years, dating from September 14, 1965, upon the First Count, for a period of twenty years, again dating from September 14, 1965, upon the Second Count of the said Indictment, the said sentence to be concurrent with that imposed upon the First Count, a term of five years upon the Third Count of the said Indictment, the said sentence to be consecutive to the sentence imposed under the First Count of the Indictment, a term of five years under the Fourth Count of the said Indictment, the said sentence to be consecutive to the sentence imposed under the First Count of the Indictment, and a term of five years under the Fifth Count of the said Indictment, the sentence to be consecutive to sentence imposed under the First Count of the said Indictment.

On September 8, 1965, after other recreational pursuits earlier in the evening, Willis David Moore, a sailor, and Maureen Ruby Dye, his date, an eighteen year old wave stationed at Bainbridge Naval Training Center, Lamont Neil Bolden, a sailor, and his date, Barbara Bernadine Cordell, a nineteen year old wave also from Bainbridge Naval Training Center, were parked in Moore’s automobile in a secluded wooded area near a water tower in the vicinity of a sub-division known as Manor Heights in Cecil County, Maryland, and apparently not too far from Gate 18 of the Bainbridge Naval Training Center. Moore was the driver of the automobile and was seated on the driver’s side of the front seat, with Miss Dye next to him. On the rear seat Bolden was situate behind Miss Dye with Miss Cordell next to him seated somewhat in the middle of the rear seat. The car was a two-door automobile.

The group arrived at this location at about 10:00 p.m. and remained in the car listening to the radio and drinking beer which they had earlier purchased. At about the same time in the neighboring community of Port Deposit, the appellant, together with the named three co-de ²⁴⁰ fendants, and a young man by the name of Thomas William Harris were making plans to go to a lovers lane area in Cecil County to see if they could find any girls whom they would then force to engage in sexual intercourse. Pursuant to this plan they eventually reached the Manor Heights area where the Moore car was parked, and removing their shirts, so as not to be easily seen in the dark and in the brush, they approached the vehicle. Hearing the radio playing and beer tops “popping,” they decided to wait longer — in the belief that the occupants would become drunk.

They then left the area, rode around in the general vicinity, taking one young man, a certain Thomas Carey, to a point near his place of employment, purchased a half of a pint of whiskey, even though they had previously purchased a half of a gallon of wine, and subsequently returned to the Manor Heights area at about 11:30 p.m. Again, they parked their automobile, driven by Owens, some distance from the Moore automobile, removed their shirts, in order to make their presence less easily discernible, and started down a path toward the Moore automobile. When they reached a fork in the path two of the young men went along one path and two went along another path, according to a pre-arranged plan whereby two were to engage one of the male occupants on one side of the parked car and two were to engage the other of the male occupants on the other side of the parked car, overpower them, and then “use the girls.” At this juncture, the fifth man, Harris, stopped and apparently reconsidering the situation, and his intended conduct, he returned to the Owens’ vehicle where he remained until Owens later returned to the car. Moore and Bolden, unaware of the presence of the four men near their automobile, got out on opposite sides of Moore’s car in order to “relieve themselves.” One of the defendants was crouched behind the car and sprang at Moore when he approached; they wrestled; Moore pushed his assailant away, and ran down the road for help.

Bolden was assaulted by two men; he feigned unconsciousness to prevent further injury; returned to Moore’s car to find only Miss Cordell still on the rear seat. As he drove away with Miss Cordell in search of help, he saw the lights from an approaching car, which he did not then know contained Moore and four other sailors coming to assist. Accordingly, he continued on to Gate 18 in order to obtain assistance. ²⁴¹ While Moore and Bolden were out of the vehicle, and apparently after their encounters with their respective assailants, three men approached the passenger side of the front seat of the Moore automobile, opened the front door and bodily took Miss Dye from the automobile. One of the men held her while her clothes were stripped from her from the waist down.

She was then taken toward the woods where she was seen by Miss Cordell to be lying upon the ground with one man near her head and two near the lower part of her body. Miss Dye testified that she had been stunned by a blow on the head, but knew that one man held her legs apart while another attempted sexual intercourse after he had put his hand into her vagina. As this car containing Moore approached the scene, Miss Dye ran from the woods screaming that she had been raped. She was naked from the waist down; after she was given a shirt to put around her, she was taken to the Bainbridge Hospital, examined and given a sedative.

Prior to Bolden’s returning to the Moore car to drive it away, Miss Cordell had seen a man other than the three who had attacked Miss Dye, come to the right side of the Moore automobile and look in the car. At about that same time, another car came up the road in such a way that its lights illuminated the face of the man, whom Miss Cordell positively identified as the appellant Johnson. On September 14, 1965, at around 5:30 in the evening, the appellant appeared at the North East State Police Barracks, where he gave a statement to members of the Maryland State Police admitting his complicity in the crime, and denying that he assisted in any way in removing Miss Dye from the car or participating in any way in the attempt to have sexual intercourse with her. Appellant contends that the evidence was insufficient to support the convictions.

We do not agree. To overturn a judgment entered on the verdict of a jury for insufficiency of the evidence, it is necessary to show that there was no legally sufficient evidence, or inferences drawable therefrom, from which the jury could find the accused guilty beyond a reasonable doubt. Royal v. State, 236 Md. 443 ; Culver v. State, 1 Md. App. 406 . In every criminal case — whether tried before a jury or by ²⁴²