McCargo v. State

Moore, J., delivered the opinion of the Court. Appellants, Thomas J. McCargo and Bernie C. Hunter, pleaded not guilty to an eight-count indictment and were tried jointly in a bench trial in the Criminal Court of Baltimore, the Honorable Albert L. Sklar presiding. McCargo was found guilty of robbery with a dangerous and deadly weapon and use of a handgun in the commission of a crime of violence for which he was sentenced to a total of 17 years. Hunter was found guilty only on the first count of robbery with a dangerous and deadly weapon for which he received a 12-year sentence.

The appeal is based on three contentions, namely that (1) the court erred in refusing to grant a mistrial because the defendant McCargo was at one point brought into the courtroom in handcuffs and because there was a newspaper article, over the weekend recess, referring to this defendant’s bail having been revoked; (2) an improper foundation was laid for the admission of certain Department of Motor Vehicles’ records; and (3) there was insufficient evidence to sustain a guilty verdict. There was evidence produced by the State from which the trier of fact could determine that on July 3,1973, Mrs. Helen Bush, a school teacher in the Baltimore City School System, was walking east on Boyd Street at about 1:30 p.m., having just cashed her paycheck for $347, of which she had $272 in cash and the balance in money orders. A yellow car slowed down beside her. A man got out and went towards her with a silver gun in his right hand.

Mrs. Bush attempted to flee but her attacker grabbed her from behind, knocking her down on the sidewalk and ran off with her purse, containing the $272 cash. The victim got up, followed the car, and was able to discern the license number which she repeated aloud to herself until she could write it down on a slip of paper. She clearly described the clothing worn by the gun-wielding ²⁹² assailant — orange pink shirt, shiny material, dark blue pants, new tennis shoes, with a purple ornament in his Afro-style hair — as well as the brilliant red shirt worn by the driver of the car, the door having remained wide open during the occurrence. The police responded to the scene and canvassed the area with Mrs. Bush to find the “yellow” car with Maryland tags ND 7324, the number she had seen and copied.

The car was soon spotted and Mrs. Bush identified the driver and passenger as her assailants not only because they were wearing the identical clothing but also because she had “looked very hard at their faces while I was standing there.” The two subjects were arrested and a total of $247 cash was recovered from them, which the police subsequently returned to the victim. Appellants’ first argument is based on the trial court’s denial of two motions for mistrial based on related matters. The first motion was made by defense counsel on March 15 when appellant McCargo returned to the courtroom handcuffed after he had apparently been taken, at the State’s request, to another courtroom during an hour and a half recess of the principal trial. Although the trial court was not aware of the defendant’s restrained condition until defense counsel brought it to his attention, a mistrial based on a violation of the defendant’s “presumed innocence” was denied for the following reason: “[T]his is a Court trial.

And this Court hears the testimony as one who understands the distinction between what is evidence in this case, and what is not evidence in this case.” When the trial reconvened, after the weekend recess, on March 18, defense counsel renewed the motion for a mistrial based on the aforementioned ground and upon the additional ground that an article had appeared in the Baltimore (Morning) Sun over the weekend concerning a bail revocation affecting McCargo. The trial court immediately interjected that: “7 did not read that article that you are going to ²⁹³ make reference to. I saw headlines, which said, ‘Bail revoked.’ I thought it might have something to do with Mr. McCargo and deliberately did not therefore read the body of the news article. So, I still do not know exactly why or what happened in that regard.” (Emphasis added.) Appellant’s attorney again urged a mistrial based on improper and prejudicial inferences the trial court could have made by combining the factors of McCargo’s return to court, on March 15, handcuffed, and the subsequent newspaper headline to the effect, “Bail revoked.” The court again denied the motion, stressing the difference between a court and jury trial and its ability to “discern the difference between what is good evidence, proper evidence attesting to the defendants’ guilt in the course of a trial” and what is not.

The trial court did not know the explanation for McCargo’s being handcuffed which, it noted, could have been for various reasons; and the court, quite properly and advisedly, refused to hear from defense counsel concerning the details of the other proceeding. Furthermore, the court’s statement on the record that he had deliberately refrained from reading the newspaper article forecloses that issue. We find only a proper use of discretion