Johnson v. State

Hornby, J., delivered the opinion of the Court. Collins L. Johnson, Crawford S. Bradford and Carroll M. Burke, having been convicted in the Criminal Court of Baltimore under a series of indictments for armed robbery, have appealed. The appellants are three of six persons who were charged with and tried for sundry robberies committed in certain liquor dispensing establishments in Baltimore City during the first five months of 1963. The convictions are but a part of more than thirty indictments under which the indictees were tried.

As a result of the robbery of Montford Liquors, on January 23, Burke was convicted under indictments numbered 2861 and 2862. As a result of the robbery of Dutch’s Tavern, on April 29, Johnson and Burke were convicted under indictments numbered 2853, 2854, 2855, 2856, 2858 and 2859. As a result of the robbery of Goerge’s Tavern, on May 7, Bradford was convicted under indictments numbered 2841, 2843 and 2844, but he does not contest any of these convictions. As a result of the robbery of Bower’s Cafe, on May 16, Johnson, Bradford and Burke were convicted under indictments numbered 2836, 2840 and 2860.

And, as a result of the robbery of Darley Park Tavern, on May 28, Burke was convicted under indictments numbered 2845 and 2864, but he does not contest either of these convictions. Since the facts and circumstances (particularly the extraju ²⁸⁶ dicial identifications) concerning those convictions which are contested in this Court do not apply to all appellants in each case, we shall state the facts with respect to the robbery of Bower’s Cafe, Dutch’s Tavern and Montford Liquors separately. Bower's Cafe Robbery The indictments for this robbery (numbered 2836, 2840 and 2860) involve all three appellants. Harry Morris was the owner-bartender and Violet Lewis was a customer.

At the trial, both testified that four men were involved in the holdup. The police lineup was composed of eight men dressed somewhat similarly, five were in their twenties and three were in their forties, and all were approximately of the same height and weight. The bartender testified that he had identified one of the robbers at the lineup and the customer testified that she had identified two, but they were not asked to identify anyone in court or whether they were able to do so. Walter Hall, another eyewitness, testified that he could not identify any of the robbers.

Sergeant Nagle (who had made a record of the identifications the eyewitnesses made) testified, however, that Lewis had picked out Burke and Bradford at the lineup and that Morris had picked out Johnson. The trial court overruled an objection that the testimony of the officer concerning the extrajudicial identifications was hearsay, but offered to permit the eyewitnesses to be recalled for cross-examination with respect to the identifications. This was not done. Aside from the identifications, there were some inconsistencies in the testimony in that the bartender stated that Carroll Burke was the one who took his ring, while Leroy Burke (a brother of Carroll) testified that the taker of the ring was Nelson Bradford (apparently a relative of Crawford Bradford).

The bartender also stated that all four robbers had guns, while Walter Hall stated only three were armed, as did Leroy Burke. The mother and sister of Johnson also testified that he was helping them move furniture at the time the robbery was committed. Violet Lewis further testified, with respect to the charge in indictment numbered 2840, that one of the four armed robbers ²⁸⁷ took her wallet from her purse, looked inside, and, finding no money, put it on the bar where it was later found. Dutch’s Tavern Robbery The indictments for this robbery (numbered 2853, 2854, 2855, 2856, 2858 and 2859) involve only Johnson and Burke.

Four of the eyewitnesses were unable to identify anyone. When, however, Joseph Ervin and Ferdinand Rutkowski, two other eyewitnesses or victims, were called and asked whether they had made any identifications at the police lineups, both replied that they had. But instead of asking them whom they had identified, the State again produced Sergeant Nagle for that purpose. After the police officer had testified as to the identifications made by Ervin and Rutkowski, both witnesses were recalled and positively identified Johnson and Burke in court as Sergeant Nagle said they had done at the lineup.

Again there were some inconsistencies in the testimony. Although Rutkowski identified both Johnson and Burke, he was apparently confused as to which one of them he had identified in each of two lineups. While both Ervin and Rutkowski identified Burke as the one who held up Rutkowski, Ervin testified that the robber was wearing a white sweater while Rutkowski stated that it was blue. Montjord Liquors Robbery The indictments for this robbery (numbered 2861 and 2862) involve only Burke.

Ralph Cullen was unable to identify anyone, but Max Rubenstein, another eyewitness, affirmatively identified Burke as one of the robbers at the trial. While Rubenstein stated he had picked out the robber from twenty or twenty-five individual photographs, Sergeant Nagle indicated that the witness had identified Burke in a group photograph he had shown him rather than from the smaller photographs. The witness also stated that he had been to two or three police lineups, when, according to the sergeant, he had been to only one lineup and was there unable to identify Burke. A few days before trial and again on the day of trial, Johnson moved for a continuance or postponement on the ground that his counsel had not had time to prepare for trial.

There was a period of thirty days between arraignment and trial. Al ²⁸⁸ though counsel had been given two weeks notice of the trial date, he had not petitioned for a continuance until four days before trial. When the trial court refused to grant a continuance, the State’s Attorney offered to make his files (including all statements taken) available to trial counsel but apparently the offer was declined. The trial lasted for almost two weeks.

The trial court refused to continue the trial, and stated it would grant a postponement should it be necessary when the time came to present the defense in order to afford Johnson further opportunity to secure such witnesses as were still missing, but it refused to delay presentation of the State’s case. On appeal questions are presented as to: (i) the propriety of denying appellant Johnson’s motion for a continuance or postponement; (ii) the admission of the testimony of the police sergeant as to extrajudicial identifications of appellants made by victims or eyewitnesses of the robbery; and (iii) the sufficiency of the evidence to convict the several appellants of the robberies for which they were indicted. Additional questions (iv) are raised by appellant Burke in a “supplementary brief” he filed in proper person. (i) Appellant Johnson contends that it was an abuse of discretion for the trial court to deny his motion for a continuance or postponement and that in so doing he was denied effective assistance of counsel in violation of his constitutional rights.

The claim is that due to the numerous indictments against him, the complexity of the issues, and the absence of witnesses material to his defense, he was unprepared for trial and that a postponement should have been granted. The granting of a continuance, as the appellant recognizes, is within the sound discretion of the trial court. Mazer v. State, 231 Md. 40 , 188 A. 2d 552 (1963); McKenzie v. State, 236 Md. 507 , 204 A. 2d 678 (1964). In this case, where the indictee was represented by counsel he had employed from the time of arraignment some thirty days before trial and was notified of the date set for trial some two weeks before trial began, we cannot say that the trial court abused its discretion in refusing to grant the requested postponement.

The States’ Attorney, ²⁸⁹ in order to aid counsel for the appellant in the preparation of his case, offered to make the whole file on the case available. Furthermore, the trial judge, though denying a continuance, emphasized his willingness to grant a postponement if counsel found, when it was time to present the defense, that he needed additional time to procure witnesses. Under the facts of this case, it is evident that Johnson had ample time to prepare for trial and, in the absence of a showing of extraordinary circumstances necessitating a delay, a postponement was not required. Harmon v. State, 227 Md. 602 , 177 A. 2d 902 (1962).

See also Bryant v. State, 232 Md. 20 , 191 A. 2d 566 (1963), and Pressley v. State, 220 Md. 558 , 155 A. 2d 494 (1959). (ü) The admission of the testimony of the police sergeant as to the extrajudicial identifications of Johnson, Bradford and Burke made by two of the victims (Morris and Eewis) of the Bower’s Cafe robbery was not reversible error. Nor was it error to admit the testimony of the officer as to' the extrajudicial identifications of Johnson and Burke made by two of the eyewitnesses or victims (Ervin and Rutkowski) of the Dutch’s Tavern robbery and thereafter allow them to identify Johnson and Burke from the witness stand. The admissibility of this type of evidence as an exception to the hearsay rule was recognized by this Court in Basoff v. State, 208 Md. 643 , 119 A. 2d 917 (1956).