Jones v. State

⁴⁷¹ Anderson, J., delivered the opinion of the Court. Appellant, William Lee Jones, Jr., was tried in the Criminal Court of Baltimore in a court trial by Judge Joseph L. Carter upon seven indictments, same being Indictments #2385, #2386, #2387, #2388, #3259, #3260 and #3261. He was convicted of sodomy under Indictment #2385 (first count) ; kidnapping under Indictment #2386 (first count) ; forgery under Indictment #2387 (first count) ; possession of barbiturates under Indictment #2388 (first count) ; and forgery under Indictments #3259, #3260 and #3261 (first count). Appellant was given consecutive sentences under Indictment #2385, ten years; Indictment #2386, thirty years; Indictment #2387, ten years; and concurrent sentences under Indictment #2388, one year; Indictment #3259, ten years; Indictment #3260, ten years; and Indictment #3261, ten years, to run concurrently with the sentences imposed in Indictment #2387.

By agreement between the appellant and the State, and with the consent of the court, the three indictments charging sodomy, kidnapping and possession of barbiturates, together with the four separate indictments charging forgery, were consolidated for trial. It was further stipulated and agreed between the appellant and the State that the State would proceed on an agreed statement of facts as to the evidence to be produced under the forgery indictments. On appeal the following questions are presented: 1) Did the court have sufficient evidence to convict the appellant of sodomy, kidnapping, violation of barbiturate laws, and forgery? 2) Did the court commit error in allowing the prosecuting witness to testify? 3) Did the court commit error in allowing the State’s Attorney to have a private conference with the prosecuting witness ? 4) Did the court commit error in its failure to ⁴⁷² rule on appellant’s motion for judgment of acquittal? 5) Did the court commit error by refusing to give appellant credit for time that appellant was in custody prior to his trial ? From the evidence adduced by the State, the lower court could find that on March 13, 1969, at approximately 10:00 p.m., as the victim, Michael Roy Crabtree, age 12, was leaving the Moonlight Restaurant at Baltimore and Broadway Streets he was accosted by appellant who forced Crabtree into his small white automobile, parked outside the restaurant.

After making two stops, appellant drove to 4404 Penhurst Avenue where he maintained a bedroom. On the way, he gave the boy six capsules and whiskey. Upon arrival at 4404 Penhurst Avenue, appellant and the victim got out of the car and he took the boy to his bedroom on the second floor. After entering the room, appellant went out and locked the door.

In a short time, he returned and made a phone call, during which time the victim Crabtree passed out and could remember nothing further. Several hours later, at about 1:25 a.m., Officer Joseph R. Muller of the Northwestern District Police Station, together with Officer Joseph Downey, went to 4404 Penhurst Avenue to serve a warrant upon appellant, charging him with forgery. The officers were admitted by James Lester Hill, ostensibly a resident. Upon information from Hill, the two officers went to a third floor unfurnished room where they found appellant apparently asleep on a mattress on the floor.

He denied his identity and claimed to be Charles Stokes. Appellant, who was not wearing shoes, was taken to the first floor. He asked for his shoes and Officer Muller returned to the room, but could not find them. Having received information that appellant had a room on the second floor, he went back to the second floor, but the room door was locked.

He gained admittance with the assistance of Hill, who had an adjoining room, and found the victim Crabtree lying ⁴⁷³ unconscious on a bare mattress, naked from the waist down with excrement on his posterior as well as the mattress, and a white shirt over his face. After the boy was found, Officer Downey brought appellant up to the room and asked him if this was his room and he said “yes.” He denied knowing the boy on the bed and stated his room had been broken into. In the room were found appellant’s shoes and other clothing as well as the boy’s clothing, a jar of petroleum jelly, several pornographic magazines, letters addressed to the appellant, and check stubs with his name on them. An ambulance was called and when the ambulance crew arrived to take the boy to the hospital, appellant turned over to the officers some orange capsules, two of which he stated he had taken from the boy and the others he had found on the floor.

The capsules were proven to be secobarbital, a narcotic drug. Appellant was placed under arrest and taken to the Northwestern District Police Station where he was given the full Miranda warnings. He signed an explanation of rights which was witnessed by both Officers Downey and Muller, same being State’s exhibit #9. In the statement of facts regarding the four separate forgery indictments, agreed to by the defense, the State’s witness, Elroy C. Wilson, would testify that he was the owner and operator of the Elroy C. Wilson Funeral Home; that in the latter part of January and early February 1969 four checks mailed from the Home Beneficial Life Insurance Company to the funeral home were missing, and that during this time appellant was employed as a substitute organist at the funeral home.

In February, 1969, Mr. Wilson received a communication from Mrs. Nancy Fromm, Assistant Manager of the Maryland National Bank, 237 North Howard Street, that the bank had cashed a check on February 6, 1969, in amount of $1,000.00, identified as E68672, and that the check had come back to the bank bearing a forged endorsement. Had she testified she would give a description of the individual who cashed the check as a colored male, late twen ⁴⁷⁴ ties, slick hair, tall, well dressed, with feminine mannerisms. Were she in court she would identify the appellant, William Jones, as the individual who cashed the $1,000.00 check. Mr. Wilson would further testify that on February 21, 1969, having a description of William Jones, he obtained a warrant for appellant.

With the warrant in his possession Officer Muller went to 4404 Penhurst Avenue, as previously testified to, and apprehended the appellant who was taken to the Northwestern Police Station. Before any questioning, he read to him an explanation of rights, which appellant then read and signed. Appellant admitted the forgery, but made no further statement. On March 27, 1969, following the preliminary hearing, appellant was asked by Officer Muller if he would answer questions relating to the checks.

Appellant agreed and was again taken to the Sergeant’s room. Present in the room were Officer Downey, Officer Muller, Detective Meeks of the Check Squad, a member of the Postal authorities, and Mr. Wilson. Officer Downey again read to appellant a waiver of rights form and appellant was allowed to re-read it. Jones then placed his initials at the bottom of the form and the date March 27, 1969 thereon.

The form was the same form he had previously signed on March 13, 1969. At this time he agreed to answer the questions of the officer, and in the course of questioning, which lasted forty-five minutes, appellant admitted that he had taken the four checks from the funeral home on Orleans Street and cashed them. He cashed the $1,000.00 check at the Maryland National Bank on February 6, 1969, the other three checks were cashed at the Union Trust Company, two of the checks on February 6, 1969, and the third check on February 18, 1969. The officers would further testify, from the time of his initial custody and through both interrogations, no promises or threats were made to appellant or his friends or relatives to make the statement or sign the waiver form.

Officer Muller would testify that he received the $1,000.00 check from the Maryland National Bank and the other three checks for $2,000.80, $500.00 and $269.00 from the Union Trust ⁴⁷⁵ Company. Mr. Wilson would testify that he did not receive the four checks, and upon examination he would testify none of the endorsements on the checks was his. I — SUFFICIENCY OF THE EVIDENCE Under the law of this State the test to be applied by this Court in reaching a determination of the sufficiency of the evidence in a non-jury case is whether the evidence either shows directly or supports a rational inference of the facts to be proved, from which the lower court could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged, Williams and McClelland v. State, 5 Md. App. 450 ; Jones v. State, 5 Md. App. 180; Roeder v. State, 4 Md. App. 705; and the judgment of the lower court will not be set aside unless clearly erroneous. Maryland Rule 1086.

Kidnapping If the trial court believed the testimony of the victim, there was evidence from which the trial court could find appellant guilty of kidnapping. Article 27, § 337, Maryland Code. According to the victim’s testimony, he was accosted by appellant and forcibly compelled to travel with appellant to the Penhurst Avenue house where appellant maintained a bedroom. Upon arrival, he was forced into the house against his will and locked in appellant’s bedroom.

From the physical evidence he was taken there for the purpose of performing a criminal act upon him. The victim was able to describe appellant’s automobile, a small white car with multi-colored lights in the interior. While appellant denied he had ever taken the boy in his automobile, he admitted that he owned a white Corvair and that when the door was open two kinds of lights came on. Moreover, the victim was found inside the appellant’s locked room, unconscious, and under the influence of drugs and whiskey.

Appellant admitted seeing the boy in the house in which he maintained a bedroom, but stated that he had taken the drugs and whiskey from the boy’s possession. Since there was a conflict in the tes ⁴⁷⁶ timony of the victim and the appellant, the rule is well established that in a non-jury case the trial court may weigh the credibility of the testimony of the accused and is not required to give it credence. Bury v. State, 2 Md. App. 674 . The facts themselves, which are undisputed, support the victim’s story.

Moreover, the victim in court positively identified the appellant as his abductor. A victim’s positive identification of a criminal defendant is sufficient to sustain a conviction. Jones v. State, 2 Md. App. 371 ; Melia and Shelhorse v. State, 5 Md. App. 354 ; Wayne v. State, 8 Md. App. 5 . From the State’s evidence, if believed, every element of the crime was proven and we cannot say that the finding of the lower court that appellant was guilty of kidnapping was clearly erroneous.

Maryland Rule 1086; Midgett v. State, 216 Md. 26 ; Laws and Dorman v. State, 6 Md. App. 243 . Sodomy There was also ample evidence to find the appellant guilty of sodomy. The victim was found in appellant’s bedroom, lying upon a mattress, naked from the waist down with excrement over his posterior and upon the mattress. Upon examination at the hospital, the rectum showed a one inch anal tear.

The tear was from the outside to the inside, with bruising around the anus. The doctor’s diagnosis was rectal penetration with tear, and in his opinion resulted from something having been forced into the rectum. While appellant denied any acts of perverted practice with the victim, the facts themselves point to him as the guilty party. See Bradbury v. State, 233 Md. 421 ; Canter v. State, 224 Md. 483 .

Moreover, appellant’s tee shirt, recovered from him at the time of his arrest, contained human excrement similar to that found on the boy and on the mattress. In view of the testimony of the victim, that he had been taken by the appellant to his bedroom after first having been given drugs and whiskey, where he passed out and could remember nothing further, we find that there was sufficient ⁴⁷⁷ direct and circumstantial evidence upon which the lower court could convict appellant of sodomy beyond a reasonable doubt. Possession of Barbiturates From the evidence it is clear that appellant had in his possession at the time of his arrest capsules found to contain secobarbital, a narcotic drug. Moreover, the victim testified that appellant had given him six to take on the drive to appellant’s room on Penhurst Avenue.

While appellant acknowledged possession of the several capsules, he claimed he had obtained two of them from the boy and had found the others on the floor of the bedroom and was waiting to turn them over to the proper authorities. It is apparent that the lower court did not believe his story. The credibility of witnesses is for the lower court, and the trial judge was not obligated to believe appellant’s testimony or denial of guilty possession. Bury v. State, supra.

Under the facts we cannot say the lower court was clearly erroneous in finding appellant guilty of possession of barbiturates. Maryland Rule 1086. Forgery With regard to the four separate offenses of forgery, appellant challenges the sufficiency of the evidence presented in the stipulated statement of facts, claiming that the State failed to identify appellant for the record in presenting the statement of facts. We find no merit to this contention.

The record is replete in the statement of facts, with several identifications of the appellant as the party in court as well as the defendant who signed the explanation of rights form prior to the time he confessed to the police officers who interrogated him that he had in fact forged the checks which were subsequently offered by the State in evidence. The stipulation of facts agreed to by the appellant amounted to an admission of his guilt to each of the forged endorsements on each of the checks. Under the stipulation of facts the lower court could find no other verdict than that the appellant was guilty as charged under each forgery indictment. ⁴⁷⁸ II Appellant’s second contention is that the trial court committed error in allowing the prosecuting witness to testify. He contends that the prosecuting witness did not have the mental facilities to observe and describe the facts pertaining to the appellant’s case.

The rule is well established in this State that the légal capacity of children to testify is within the sound discretion of the trial court. Horsey v. State, 225 Md. 80 ; Robert v. State, 220 Md. 159 ; Saldiveri v. State, 217 Md. 412 ; Reckard v. State, 2 Md. App. 312 ; Rodgers v. State, 4 Md. App. 407 . The prosecuting witness was a twelve year old boy and on direct examination, in which he testified to the facts as he recalled them, no question was raised as to his competency. However, on cross-examination, he experienced difficulty in testifying and the trial court sought to determine what was causing him difficulty and to find out what was his real problem.

At the conclusion of the witness’s testimony, the appellant moved to strike his testimony on the ground that he was not qualified as a competent witness, in that he did not know what it meant to tell the truth. The trial court in a careful summation of his testimony came to the conclusion that the witness was undergoing some emotional strain which amounted to an emotional blockage. However, the trial judge concluded that since the