Johnson v. State

Orth, J., delivered the opinion of the Court. The appellant was found guilty by a jury in the Criminal Court of Baltimore of murder in the first degree and attempted robbery with a deadly weapon. He was sentenced to imprisonment for the balance of his natural life on the murder convic ⁶⁵² tion and to a concurrent sentence of 10 years on the attempted robbery conviction. On appeal from the judgment he contends: I. He was denied a speedy trial; II.

The trial court erred: 1) in its ruling with regard to impeachment of a State’s witness; 2) in its instructions to the jury, and 3) in the admissibility of certain testimony.

III

The evidence was not sufficient to sustain the convictions. I The appellant and a co-defendant, Irvin EeRoy Brooks, were presented on 15 June 1966 and indicted on 20 June 1966. The appellant’s trial commenced on 6 October 1967. 1 On 10 August 1966 a hearing was held on the appellant’s motion for a speedy trial which he had filed on 20 July 1966 and trial was set for 26 August but on 16 August he filed a motion to dismiss the indictment. The case came on for trial on 26 August and for the first time the State was informed that the appellant desired a jury trial.

The court granted a postponement of four days at the request of the State. It appears that the motion to dismiss was not pressed. After the postponement was granted the trial judge noted that the appellant had not been present at the proceedings and ordered him brought to chambers to have the court stenographer read to him what had occurred out of his presence. While this was being done, the judge, observing the conduct and demeanor of the appellant, felt there was some reason to suspect that he may have been a lunatic or insane and referred him to the Medical Service of the Supreme Bench of Baltimore which reported the same day: “Our psychologist * * * was of the definite opinion that Mr. Johnson is not pres ⁶⁵³ ently able to stand trial nor to assist his counsel in his own defense”.

It recommended that the appellant be sent to Clifton T. Perkins State Hospital for treatment and evaluation. The court, over objection of the defense, ordered the appellant to be transferred to that hospital “there to be examined and evaluated for a determination and report to this Court as to whether he is presently able to stand trial and to assist counsel in his own defense”. 2 Under date of 11 November 1966 the Superintendent of the hospital reported that in his opinion and that of the Medical Staff the appellant was currently competent to stand trial and “was of such mental capacity and reason at the time of the alleged offenses so as to be properly able to distinguish between right and wrong and to know the nature and consequences of his acts as applied to himself”. 3 It was requested that arrangements be made to return the appellant to the custody of the court. In view of the action of the court in having the appellant examined and evaluated to determine his competency to stand trial, we think it clear that none of the period prior to that determination was chargeable to the State in computing a delay in the constitutional sense in bringing the case to trial. See Stevenson v. State, 4 Md. App. 1, 11 .

In the meantime, the appellant’s court appointed counsel had been incapacitated by reason of injuries suffered in an automobile accident about 1 October 1966. On 8 December 1966 the Assistant State’s Attorney prosecuting the case wrote counsel that the State was “anxious to set the above case in for trial and requesting ‘one or more suitable trial dates’ ” As it appeared that defense counsel would not be able to proceed with the case for some time,, his associate requested the court to appoint other counsel and the court did so on 20 December 1966 with the associate as co- ⁶⁵⁴ counsel. The appearance of the newly appointed counsel was entered on 27 January 1967. 4 He filed a motion to dismiss the indictment for lack of a speedy trial on 30 January, and on the same date entered a plea of insanity and petitioned for further medical examination. Defense counsel made clear that the motion to dismiss was predicated “on the happenings up to and including January 31, 1967”.

The motion to dismiss was denied at a hearing on 31 January and the motion for further medical examination granted. At the hearing counsel also filed a motion to exclude evidence. The report from a private psychiatrist was rendered on 6 February. The case was set for trial by the State on 9 March but was taken out of the assignment at request of defense counsel.

In his brief the appellant states that trial was set in April and was postponed because defense counsel was engaged in previously assigned trials and again on a date in May which was not acceptable to defense counsel who was engaged in a trial in the federal court. On 12 June an Assistant State’s Attorney wrote defense counsel: “As I have previously advised you, the State is prepared to go to trial in the above-entitled case at the earliest mutually agreeable date. I understand that the Defendant elects to have the case tried before a jury. As you no doubt know, the present jury panel term ends on June 16, and there will not be another regular panel available until the two week period from July 24 through August 4.

If, however, you wish to proceed with trial before the end of July, please advise me promptly as to what dates you will be available, and this office will request the Bench to make a special panel available”. On 21 June the Assistant State’s Attorney wrote the jury commissioner that defense counsel had requested trial by a jury the week of 26 June and asked if a special panel could be brought in. The jury commissioner informed the State that the next panel would be available from 24 July through 4 August. On ⁶⁵⁵ 26 July the State wrote defense counsel and asked him to suggest a date when he would be available for trial.

On 8 September the State wrote defense counsel that in accordance with request of defense counsel that the case be set for trial not later than 20 September, trial had been set for 19 September but that as the State understood that the date was not convenient to the defense, it had been set for 28 September. It was requested that defense counsel inform the State if it could proceed to trial on that date. Trial was again postponed by mutual agreement and the case came to trial on 6 October after a hearing on motion to dismiss the indictment was denied. The right to a speedy trial is a relative one and the time within which trial must be had to satisfy the constitutional guaranty depends on the facts and circumstances of the particular case.

Kelly v. State, 2 Md. App. 730 . In Stevenson v. State, supra, at 11, we set forth the four factors which are relevant to a consideration of these facts and circumstances in determining whether a delay in trial assumes constitutional proportions: (1) the length of the delay; (2) the reason for the delay; (3) prejudice to the accused; and (4) waiver by the accused. We have found that any delay prior to 11 November 1966 was not chargeable to the State. We think that the period from 11 November 1966 to the date of trial was not such a substantial delay as to make a prima facie showing of prejudice so as to place a burden on the State of proving both that there was no more delay than was reasonably attributable to the ordinary processes of justice and that the accused suffered no prejudice thereby.

Nor do we think that under the facts and circumstances above set forth the delay from 11 November 1966 wras reasonably chargeable to the State. Thus the delay was not capricious and oppressive on the part of the State and was not a delay in the constitutional sense. See Fabian v. State, 3 Md. App. 270, 285 . In any event, the appellants have not shown a “strong possibility” of prejudice as is required when demand for a speedy trial has been made. 5 Stevenson v. State, supra, ⁶⁵⁶ at 14, 15.

The appellant alleges that he was prejudiced by being tried after his co-defendant because the effectiveness of the sequestration of witnesses was “destroyed” and the effectiveness of cross-examination was reduced. If applied as the appellant urges, the State, first trying a defendant, would be precluded from prosecuting a co-defendant. The appellant cites no authority to this effect and we know of none. It is obvious that when a severance is granted, one of the co-defendants must be tried subsequent to the other.

We do not find this allegation to be sufficient to show the required strong possibility of prejudice. The appellant also alleges that the action of the trial court in ordering his medical examination prejudiced him by violating his right to a speedy trial. We think it clear that such action is a proper exercise of the court’s discretion when it has reason to suspect that a defendant may be a lunatic or insane, and particularly when its suspicion is buttressed, as it was here, by expert opinion on preliminary examination, that the defendant was not able to stand trial or assist his counsel in his defense. In view of our findings we need not consider the factor of waiver.

We hold that the appellant was not denied a speedy trial and that the lower court did not err in denying the motions to dismiss the indictment. II 1) Arion England, a witness for the prosecution, admitted on cross-examination that he had been convicted of a crime. At a bench conference out of hearing of the jury, the criminal record of the witness was reviewed and the court stated that it would not permit defense counsel to interrogate the witness “about disorderly conduct convictions or the one as to being drunk or the possession of barbiturates.” In the presence of the jury it was brought out that the witness had been convicted of larceny on 21 February 1963 and sentenced to 90 days, of assault on 30 July 1963 and sentenced to 3 months, of assault on 3 May 1965 and sentenced to 6 months, and of assault on 9 January 1966 and fined $50 and costs and committed. The appellant contends that the lower court erred in not allowing the witness to be examined as to his conviction of possession of barbiturates. ⁶⁵⁷ It is competent for any party to the proceedings in all cases to prove by legal evidence the conviction of a witness of any infamous crime.

Md. Code (1965 Repl. Vol.) Art. 35, § 10. An “infamous crime” is such crime as involved moral turpitude, or such as rendered the offender incompetent as a witness in court. State v. Bixler, 62 Md. 354, 360 . “The crimes which the common law regarded as infamous because of their moral turpitude were treason, felony, perjury, forgery, and those other offenses, classified generally as crimen falsi, which impressed upon their perpetrator such a moral taint that to permit him to testify in legal proceedings would injuriously affect the public administration of justice.” Garitee v. Bond, 102 Md. 379, 383 .

The offender was rendered incompetent as a witness in court on the theory that a person would not commit so heinous a crime unless he was so depraved as to be unworthy of credit. State v. Bixler, supra, 360. But by statute no person offered as a witness shall be excluded by reason of incapacity from crime and shall be admitted to give evidence notwithstanding that he “may have been previously convicted of any crime or offense” unless he has been convicted of perjury, in which event he shall not be admitted to testify “in any case or proceeding whatever.” 6 Md. Code, supra, Art. 35, § 1; Florentine v. State, 184 Md. 335 . The general rule, however, is that a witness may be cross-examined on matters which test his credibility, Howard v. State, 234 Md. 410, 415 , and under this rule he may be questioned as to his previous convictions, Woodell v. State, 2 Md. App. 433, 438; Huber v. State, 2 Md. App. 245, 256.

Such evidence of prior convictions is admissible only for the purposes of impeachment and not to prove a fact in issue unless relevant to that issue and not collateral thereto. Wethington v. State, 3 Md. App. 237 . Evidence of the prior convictions need not be restricted to infamous crimes or those involving moral turpitude, provided the offense may have some tendency to show that the witness is not to be believed under oath. Taylor v. State, 226 Md. 561 ; Linkins v. State, 202 Md. 212 .

The allowance or disallowance of certain questions on ⁶⁵⁸ cross-examination is normally left to the sound discretion of the trial judge, Holt v. State, 3 Md. App. 544 , and it is when there is an abuse of discretion to the prejudice of the accused that we must reverse, Shupe v. State, 238 Md. 307, 310, 311 . 7 In the instant case, the appellant urged that it was not him but England who participated in the crime with Brooks and that the prior conviction of England of possession of barbiturates was admissible to show that England might have been under the influence of narcotics at the time of the commission of the crime. We think that the fact of that conviction, at best, was admissible only under the rule with regard to impeachment of the credibility of the witness and was collateral and irrelevant to the issue of the guilt or innocence of the appellant. The proper object of evidence of the prior convictions of the witness was to discredit him by showing that his character was such as to render his testimony unworthy of belief on the issue of its truth. “In other words, is the witness devoid of moral perception, such a person as would regard lightly the obligations of an oath to tell the truth?” Burgess v. State, 161 Md. 162, 172 . Evidence of the convictions of the witness for larceny and three crimes of assault were before the jury for such bearing and weight on his credibility as the jury might give it under the circumstances.

We are not prepared to say that under these circumstances, the ruling of the lower court was so clearly wrong as to call for a reversal of the judgment. “Especially is this true when it is shown by the record that the jury had the full benefit of inquiry into the witness’ past life sufficient to indicate to them the probable character of the witness.”