Johnson v. State

Moore, J., delivered the opinion of the Court. Appellant, Kenneth Ricardo Johnson, was convicted by a Prince George’s County jury of the crime of burglary and sentenced by the court (Powers, J.) to a twelve year term of imprisonment. His appeal raises four contentions: 1) The court erred in not granting his request for a rule on witnesses before the completion of opening statements and in denying his motion for a mistrial based thereon; 2) the court erred in permitting the State to amend Count Two of the indictment, alleging housebreaking; 3) the evidence was not sufficient to support his conviction; and 4) the court denied him due process by sentencing him “to a longer term based upon his not ²¹⁶ admitting guilt but instead pleading not guilty and testifying in his own behalf.” We treat these contentions in the order presented and affirm the judgment of conviction. I The case came on for trial on May 16, 1973.

After the Assistant State’s Attorney had commenced his opening statement, defense counsel apologized for interrupting and requested a rule excluding witnesses, to which the court responded: “Very well, I will do that when the opening statements are over. I don’t want to interrupt this now. Go ahead.” At the conclusion of the State’s opening statement, defense counsel moved for a mistrial. The court denied the motion and also denied counsel’s renewed request for a rule on witnesses prior to making his own opening statement: “MR.

FOLSTEIN: I would ask you to make the rule on witnesses at this point before I make an opening statement. THE COURT: You are not supposed to. You don’t have to until after the opening statement is over. You can leave the first witness in and have the others go out.

It disrupts things having witnesses going back and forth. The purpose has nothing to do with opening statements. If the witness doesn’t know as much about the case as will be told on opening statement, the attorneys would be lax or — MR. FOLSTEIN: I feel he has been prejudiced by the fact that he has heard the State’s entire proposition of the case, the legal points he has to score and everything else.

THE COURT: How has he been prejudiced? MR. FOLSTEIN: He has been prejudiced by ²¹⁷ telling the Court everything that this witness has to know. The main witness is Mr. Stevenson, whose house was broken into.

THE COURT: Don’t you think they have discussed the case before? I don’t want to waste anymore time. MR. FOLSTEIN: Will you rule on witnesses?

THE COURT: I will announce the rule when you finish the opening statement.” Counsel then delivered his opening statement. At its conclusion, the court ordered the sequestration of the witnesses. Md. Rule 753 provides in relevant part: “The court may upon its own motion and shall, upon the request of a party, order that the witnesses be excluded from the courtroom until called upon to testify.” The primary purpose of the rule is to prevent prejudice and to insure, as far as possible, that one witness shall not be taught, schooled or prompted by another witness’ testimony. Conway v. State, 15 Md. App. 198 , 289 A. 2d 862 (1972); Jones v. State, 11 Md. App. 468 , 275 A. 2d 508 (1971).

When the request for exclusion of witnesses is made, it is mandatory that the trial court comply with the request. Bulluck v. State, 219 Md. 67 , 148 A. 2d 433 (1959); Pinkney v. State, 12 Md. App. 598 , 283 A. 2d 800 (1971). The failure to comply with the rule does not constitute reversible error per se, however. Hurley v. State, 6 Md. App. 348 , 251 A. 2d 241 (1969); Jones v. State, supra.

The real question is whether the action of the lower court in denying a request for the exclusion of witnesses or in allowing the witness to testify where there has been a violation of the exclusion rule constituted prejudicial error. Bulluck v. State, supra; Swift v. State, 224 Md. 300 , 167 A. 2d 762 (1961). In stating that the purpose of the sequestration rule “has nothing to do with opening statements,” the trial court had ²¹⁸ the support of Wigmore (6 Wigmore, Evidence, 3rd ed. § 1840): “The time for sequestration begins with the delivery of testimony upon the stand and ends with the close of testimony. “It is therefore not appropriate during the reading of the pleadings or the opening address of counsel; any danger of improper suggestions at such times is to be dealt with in other ways.” (Emphasis in original.) In Bulluck, supra, the Court of Appeals recognized that this principle may not be valid for all situations. Bulluck involved the claim of an appellant that becáuse the case turned on his being identified as the rapist, the trial court’s refusal to grant his request that all witnesses be sequestered before he was called upon to stand and plead, was prejudicial error.

Judge Hammond (later Chief Judge), writing for the Court observed: “If identification is a crucial or important factor in a case, exclusion of witnesses, before the accused is put physically in a position where it is apparent that he is the accused, may be necessary for his proper protection.” The Court went on to say, however: “We assume, without deciding, that the appellant’s request should have been granted, but we think no prejudicial error resulted from its denial.” Neither is it necessary for us in this case to decide whether the lower court was correct in stating categorically that the witness exclusion rule “has nothing to do with opening statements,” and in granting appellant’s request only after the opening statements were completed because the record before us is convincing that appellant suffered no prejudice from the court’s action. Four witnesses testified for the State, the prosecuting ²¹⁹ witness, James Stevenson, and three members of the Prince George’s County police department. While the record affords practically no enlightenment on this point, we shall assume all four witnesses heard the State’s opening statement, which outlined in detail the (relatively simple) facts as to which each would testify. 1 Mr. Stevenson testified in substance that he had left his house at approximately 6:00 p.m. on January 6, 1972 after locking the doors; that it was “about dark” when he left; that he returned home two hours later to find one of the panels of his jalousie-type front door removed and lying on the grass; that he discovered the interior of the house “in shambles” and determined that various objects of value had been taken including a television set, a tape recorder, and money from a plastic box-like coin container kept in the dresser drawer; and that he had never seen appellant prior to the trial and to his knowledge appellant had never been in his house. Detective Schultz, Evidence Collection Section, Prince George’s County police, testified that he had lifted several latent fingerprints from the same plastic coin container shortly after the reported burglary and turned them over to the fingerprint examiner’s office.

Detective Joseph Gray identified a set of fingerprints belonging to appellant which he had taken from appellant in the Sheriffs office on June 6, 1972. Andre DeGagne, police fingerprint examination supervisor, testified in some detail on the nature of fingerprint identifications. He then stated he had compared the latent fingerprints received from Detective Schultz with appellant’s fingerprints rolled on June 6 and that the comparison had revealed a positive identification. It is at once apparent, we think, that the State’s witnesses could not have been “taught, schooled or prompted” in any meaningful sense by hearing one another’s testimony as outlined in opening statement.

Mr. Stevenson’s testimony was limited solely to establishing the corpus delicti of the burglary; he gave no evidence bearing on the issue of ²²⁰ appellant’s criminal agency. The testimony of the police witnesses, on the other hand, involved entirely their investigation as a result of which appellant’s criminal agency was established by scientific evidence — an investigation in which they played completely separate roles. Appellant recognizes that the potential for tutoring in any direction presented by this arrangement of the witnesses is negligible; thus his claim appears to be basically that Stevenson was instructed in “key points” of his own testimony by the State’s opening remarks, viz., as to the approximate value of the items missing from his home, whether he had known appellant prior to trial, and whether it was light or dark when he left his house. But it requires only common sense to recognize that Stevenson was in need of no instruction on these points.

We conclude, therefore, that appellant was not prejudiced by the court’s refusal to exclude the witnesses until completion of the opening statements. Therefore, even assuming the court should have granted appellant’s request when made, there was no reversible error. We pause, however, to note our agreement with the view expressed by the Court in Martinez v. State, 342 P. 2d 227 (Wyo. 1959), where a similar request had been made for exclusion of witnesses prior to the prosecution’s opening statement: “We think that whenever exclusion of witnesses is indicated, the better practice is to make the exclusion at the beginning of trial.” 2 II Appellant next contends that the court erred in permitting the State after the close of its case to amend Count Two of the indictment, alleging housebreaking. The indictment was in four counts, each alleging the same operative facts.

Except for Count Two, all alleged that the offense was committed on or about January 6, 1972; Count Two gave as ²²¹ the date August 6, 1972, and in moving for leave to amend the indictment the State merely sought to make the latter date conform to the date in the other counts. It is apparent that the error was typographical and that the amendment was as to form and not substance. Tucker v. State, 5 Md. App. 32 , 245 A. 2d 109 (1968); Mills v. State, 12 Md. App. 449, 461 , 279 A. 2d 473 (1971). Moreover appellant’s own exculpatory testimony related entirely to an encounter he alleged to have taken place on the sidewalk in front of Stevenson’s house on January 6, 1972, and thus he could not have been surprised by the requested amendment.

We find no abuse of discretion in the court’s permitting the State to amend the indictment. Ill Appellant’s third contention is that the evidence did not support his conviction “since the sole evidence was fingerprint identification without facts to indicate placement could not have been at a time other than the date of the incident.” Fingerprint evidence must, of course, be coupled with evidence of other circumstances tending to reasonably exclude the possibility that the print was impressed at a time other than that of the crime. Such additional evidence need not be independent of the latent fingerprint. Palmer v. State, 10 Md. App. 152, 156 , 268 A. 2d 582 (1970).

This evidence was supplied by Mr. Stevenson’s testimony that he found the coin container, emptied of its contents, in his house after the burglary and that he did not know appellant and to his knowledge appellant had never been in his house. Appellant himself testified that he had never been inside Stevenson’s house but ventured to explain his fingerprints on the coin box as the result of a friend’s approaching him outside the Stevenson house and asking him “to hold” the box, which appellant declined to do but merely “pushed away” the box, after which the friend was called into the Stevenson house. The jury was not, of course, required to accept this “explanation.” Appellant’s third contention that there were no facts “to indicate placement could not have been at a time other than the date of the incident” is without merit. ²²² IV Appellant argues, finally that he was denied due process by the action of the lower court in sentencing him “to a longer term based upon his not admitting guilt but instead pleading not guilty and testifying in his own behalf.” The relevant portion of the transcript of the sentencing proceedings is as follows: “THE DEFENDANT JOHNSON: Well, I would like to, if you give me time, I’d like to get together what I’m doing at Lorton, and I’ve learned my lesson by being at Lorton. THE COURT: What lesson have you learned when you were not telling the truth about it at the time of trial?

THE DEFENDANT JOHNSON: I wasn’t telling the truth about it? THE COURT: That’s right. The jury didn’t believe you about this wild story about a man running out and asking you to hold something; that’s perfectly ridiculous. The jury didn’t accept it and I didn’t accept it.

You weren’t telling the truth. THE DEFENDANT JOHNSON: I was telling the truth. THE COURT: Very well. A necessary ingredient to leniency in any case is the attitude of the individual.

THE DEFENDANT JOHNSON: Yes, sir. THE COURT: And when you sit up here and lie about it, and you’re not telling the truth. You think you’re trying to get away with it. That attitude is not consistent with any consideration for leniency.

If you had come in here after this happened, before the other trouble you got into — if you had come in here with a plea of guilty and been honest about and said, ‘Of course I did it,’ which you did, you would probably have gotten a modest sentence, concurrent with the one in the District of Columbia, ²²³ and you would have gotten out of it. But with this attitude that you have you can’t receive that kind of treatment. The sentence of the Court is that you be confined under the jurisdiction of the Department of Correctional Services for a period of twelve years, to run concurrent with the sentence that you are serving in the District of Columbia.” Appellant, as indicated, was sentenced to twelve years imprisonment. Md. Code, Art. 27, § 29 provides for a maximum sentence of twenty years for burglary.

We have repeatedly held that the matter of sentencing is within the discretion of the trial judge and, if within statutory limits, is generally not subject to appellate review unless dictated by passion, prejudice, ill-will, or other unworthy motive. Johnson v. State, 9 Md. App. 37, 39 , 262 A. 2d 325 (1970); Minor v. State, 6 Md. App. 82 , 250 A. 2d 113 (1969); Gee v. State, 2 Md. App. 61 , 233 A. 2d 336 (1967). This rule, of course, does not immunize the procedure pursuant to which an accused is sentenced from scrutiny under the due process clause of the Fourteenth Amendment. Baker v. State, 3 Md. App. 251 , 238 A. 2d 561 (1968).

Hence, although a judge may impose a sentence in his informed discretion, a sentence predicated to some extent upon misinformation of constitutional magnitude (e.g., a report of a prior conviction when such conviction was wholly unconstitutional under Gideon v. Wainwright) is improper. Towers v. Director, 16 Md. App. 678 , 299 A. 2d 461 (1973). Equally improper is inquiry by the trial judge prior to imposition of sentence as to whether or not the defendant contemplates filing an appeal, since such an inquiry gives rise to an inference that the severity of the sentence is to be measured by the response of the defendant. Mahoney v. State, 13 Md. App. 105 , 281 A. 2d 421 (1971).

In Mahoney , however, where the sentence imposed was well within the statutory limits, Judge Gilbert, writing for the Court, found no indication that the sentence imposed was motivated by passion, ill-will, prejudice, or other unworthy motive, nor that it was “vindictive” (quoting North Carolina v. Pearce, 395 U. S. 711 ²²⁴ (1969)) as a result of the defendant’s response to the inquiry relative to an appeal. Appellant argues that the decision of the United States Court of Appeals for the District of Columbia in Scott v. United States, 419 F. 2d 264 (1969) dictates the course we must follow here. In Scott the trial judge imposed the maximum sentence on a defendant in what “in essence represented a response to the fact that defendant (falsely) asserted his innocence at trial and persisted in asserting his innocence in the course of his allocution.” (Leventhal, J., concurring). Rejecting arguments either that additional punishment was in order for the independent substantive offense of perjury of which the trial judge believed the defendant guilty or that the commission of perjury reflected adversely upon the defendant’s prospects for rehabilitation, the Circuit Court remanded the case for resentencing.

With respect to the second argument it said, in an opinion by Chief Judge Bazelon: “* * * the peculiar pressures placed upon a defendant threatened with jail and the stigma of conviction make his willingness to deny the crime an unpromising test of his prospects for rehabilitation if guilty. It is indeed unlikely that many men who commit serious offenses would balk on principle from lying in their own defense. The guilty man may quite sincerely repent his crime but yet, driven by the urge to remain free, may protest his innocence in a court of law. This realization, indeed, unquestionably accounts for the extreme infrequency with which convicted criminals are in fact prosecuted for perjury committed at their trials.” 419 F. 2d 269 .

The Court cited with approval Thomas v. United States, 368 F. 2d 941 (1966), in'which the Court of Appeals for the Fifth Circuit held that a defendant had “paid a judicially imposed penalty for exercising his constitutionally exercised rights” when he rejected the trial court’s invitation at the time of sentencing to “come clean and make a clean breast of this ²²⁵ thing for once and for all” and then received the maximum sentence. In a sensitive concurring opinion in Scott Judge Leventhal explained his reason for concurring in the remand: “It is not easy for me to define why I concur in a judgment of remand. There is a natural, and I believe