Kober v. State

Thompson, J., delivered the opinion of the Court. Michael Earl Kober, the appellant, was convicted of unnatural and perverted sexual practices, rape, and kidnapping. The crimes were committed in an unusually cruel and vicious manner. Such factual details as are necessary are presented with the contentions concerning them.

After the case had been removed from Montgomery County to the Circuit Court for Queen Anne’s County, Kober was tried before a jury and sentenced to a total term of 60 years by the presiding judges, J. DeWeese Carter and B. Hackett Turner, Jr. I Principal in the Second Degree Kober alleges the trial court committed plain error in the instructions by advising the jury that guilt could be found if Kober “personally committed these crimes . . . or . . . was present at the scene of the commission actively aiding, abetting or assisting others in their commission . . .” He relies on State v. Magliano, 7 Md. App. 286 , 255 A. 2d 470 holding an accessory after the fact, who was not present at the time of the crime, could be convicted only after the principal had been first con ¹⁷² victed. As pointed out in the recent case of Jeter v. State, 9 Md. App. 575 , 267 A. 2d 319 , the rule as to trial of accessories does not apply to principals in the second degree; the latter may be convicted if the evidence shows a guilty principal in the first degree whether or not he has in collateral proceedings been actually convicted of the crime. Since the court’s instructions here allowed conviction only if Kober were a first or second degree principal, there was no error. II Sufficiency of the Evidence Kober contends there was no evidence sufficient to establish him as one of the criminal agents.

He does not contend the testimony of the prosecuting witness was not sufficient to establish the occurrence of the three crimes. The prosecutrix, although unable to identify Kober as one of the participants, testified all three men participated directly in all three crimes. Stephen Lee Walsh, who was confined in a hospital room with Kober,- testified that during the long hospitalization, Kober told him they picked up a girl at the Hot Shoppe, took her out on Eoute 29 and raped her, detailing the acts of burning her, the perverted practices, and the urinating on her. Describing their activities as “pagan style rape”, Kober told Walsh that he, Kober, was present throughout the commission of the crimes, with many of the descriptions being in the first person plural “we.” Kober’s statement to the police admitted that on the night of the crimes he was with the two other men who weré indicted for the crimes.

One of these two men was identified by the victim.. In. talking to Walsh, Kober recited the very specific details of these unusual crimes which agreed with the prosecutrix’s testimony. Walsh had discussed the crimes with no. one else from whom he could have received these details. Walsh’s self-interest in cooperating with the prosecution was fully developed before the jury, which evidently chose to believe him.

The testimony was entirely adequate to support the verdict. Kober attacks Walsh’s credibility as a witness; how ¹⁷³ ever, credibility of witnesses is for the trier of facts, not for this Court. Gardner v. State, 8 Md. App. 694 , 261 A. 2d 799 , Bromwell v. State, 8 Md. App. 382 , 259 A. 2d 577