McKnight v. State

Liss, J., delivered the opinion of the Court. Appellant, John Lee McKnight, Jr., was charged in a series of four criminal informations with robbery with a deadly weapon and several lesser included offenses, the crimes allegedly having occurred on four separate dates within a one month period and involving four different victims. Before trial, appellant filed a motion for separate trials, contending that his defense would be prejudiced if the alleged offenses were joined and he was forced to trial on all four informations at the same time. Chief Judge Dulany Foster heard and denied the motion.

Appellant was tried by a jury before Judge Meyer Cardin in the Criminal Court of Baltimore; he was convicted of three counts of robbery, one count of armed robbery, and one count of assault. After denying a motion for a new trial, Judge Cardin imposed sentences, and it is from these judgments that this appeal was filed. Appellant alleges five grounds which he contends individually and collectively amounted to reversible error. We do not agree and shall affirm.

We shall discuss the ²⁸² alleged grounds seriatim as they are here stated in appellant’s brief: I. The court abused its discretion in denying the motion to sever the informations due to the resultant prejudice to the accused; II. The court abused its discretion in denying requested in-court identification procedures away from the trial table; III. The court erred in denying the motion for dismissal and/or motion for continuance upon the amendment of Criminal Information No. 67500340; IV. The court abused its discretion in refusing one of appellant’s witnesses from testifying after having violated the sequestration rule; and V. The court abused its discretion in allowing rebuttal evidence beyond the scope of the case in chief, and highly prejudicial in nature.

I. Maryland Rule 734 provides that the court “may order two or more indictments tried together if the offenses and the defendants, if there be more than one, could have been found in a single indictment.” Maryland Rule 735 provides: “If it appears that an accused or the State will be prejudiced by a joinder of offenses, or of defendants in an indictment or by joinder for trial together, the court may order an election or separate trials of counts, grant separate trials of defendants or provide such other relief justice requires.” At the hearing before Chief Judge Foster, appellant argued that each criminal information charged “a separate occurrence on different days involving different witnesses on both the State’s and the appellant’s side.” He also urged that to have all four informations tried at the same time would tend to inflame the jury. We must consider 1) ²⁸³ whether it was error to deny appellant’s motion for separate trials and 2) if it was, whether that error was prejudicial. In Sutton v. State, 25 Md. App. 309, 313 , 334 A. 2d 126 (1975), this Court stated the general rule as to severance: “One of the factors to be considered in the trial judge’s determination of whether to grant a severance is the saving of the time and the expense that unnecessary separate trials would entail. Moreover, the decision as to whether to order separate trials is vested in the sound discretion of the trial judge.

If it appears that the facts to be proved in one case are substantially the same as those in the other or that they are so closely related that the evidence necessary to show one crime is intertwined with the other, there is no reason to order a severance unless the joinder is prejudicial.” (citations omitted) In Sutton , one of the two indictments joined for trial charged the defendant with homicide and was returned in December of 1973, while the other indictment charged an assault on a different victim and was not filed until some four months later. The Court held there was no prejudice to appellant and concluded that the trial judge properly denied the severance motion. A similar contention was raised in Baumgartner v. State, 21 Md. App. 251, 255 , 319 A. 2d 592, 595 (1974); and this Court held that the appellant “errs in contending that the court must require separate trials or elect among counts where the accusations do not arise from the same transaction,” 1 and that “[i]t is also not necessary that all the offenses charged be committed against the same ²⁸⁴ victim.” See Jennings v. State, 8 Md. App. 312 , 259 A. 2d 543 (1969). Where the record discloses, as our own review of this one does, that the offenses charged are of the same general nature and formed part of a general scheme of unlawful conduct, the refusal to grant separate trials is not prejudicial.

As the State pointed out at the hearing on appellant’s motion for a new trial, three of the four victims were gentlemen in their late fifties and sixties, all four of the victims lived in the same neighborhood as the defendant, three of the four victims knew the defendant by face prior to the occurrences, and the modus operandi of the assailant was strikingly similar: in three of the four cases, the victim was yoked, and in three of the four crimes the assailant ripped the victim’s pocket in an attempt to get the money. Appellant relies principally on Bell v. United States, 332 A. 2d 351 (D.C. 1975), in which case the District of Columbia Court of Appeals held that the accused is entitled to a severance where: 1) the jury may cumulate evidence of separate crimes to find guilt or 2) where the jury may improperly infer a criminal disposition and treat inference as evidence of guilt. But the Court held further on, at 353-354: “In this case evidence of the two offenses would not be mutually admissible at separate trials; however, the evidence as to each crime charged was sufficiently simple and distinct to meet the test of Drew v. United States, supra at 17-18, 331 F. 2d at 91-92, that: [I]f, from the nature of the crimes charged, it appears that the prosecutor might be able to present the evidence in such a manner that .. . the jury will be able to treat the evidence relevant to each charge separately and distinctly, the trial judge need .not order severance or election at the commencement of the trial. If, however, it appears at any later stage in the trial ... that there is a possibility that the jury will become or has ²⁸⁵ become confused, then, upon proper motion, the trial judge should order severance.” In the instant case the motion for severance having been denied, appellant requested that a special instruction be given prior to trial in which the jury was to be advised that since there were four different alleged offenses charged “they should remember to keep each one separate and not let the evidence as adduced to any one occurrence affect their judgment as to any other occurrence.” The trial court complied and gave the following instruction before the testimony began: “THE COURT: Ladies and gentlemen of the jury, this trial involves four separate alleged offenses allegedly committed by the Defendant on four separate days, and you are not to consider the evidence relating to one of these occurrences as having any relevance or bearing on any other alleged occurrence.

The Defendant is entitled to be judged separately on each of these separate occurrences.” In addition, the trial court wisely repeated its cautionary admonition to the jury at the conclusion of the trial, to wit: “Now, this trial, as I indicated earlier, involved four separate and alleged offenses committed by the Defendant on four separate days, and you are instructed not to consider the evidence relating to any one of the cases as having any relevance or bearing on any other alleged crime, and that the Defendant is entitled to be judged separately on each of the separate criminal informations.” Although the evidence of guilt in each individual crime charged here would not be mutually admissible at separate trials (since the evidence in any one case would not directly show guilt in any other case, See Wood v. State, 191 Md. 658 , 62 A. 2d 576 (1948); Jennings, supra), we believe that the similarity of circumstances and of the conduct of the ²⁸⁶ appellant in the perpetration of the crimes permitted the joint trial of the four cases. From our own review of the record, we are satisfied beyond any reasonable doubt that the facts as presented by the State were “sufficiently simple and distinct” to allow the jury to relate easily the facts of each case to the particular offense with which appellant was charged. We find no abuse of the trial court’s discretion in denying severance of the cases and no evidence of prejudice to the appellant arising from this denial.

II

Appellant next urges that the trial court abused its discretion in denying his request to be seated in the audience for the in-court identification. He contends that in order to insure due process it is incumbent on the State to produce evidence of a reliable and untainted identification prior to trial, or that the court, where no such evidence is forthcoming, insure the defendant a fair and impartial in-court identification free from the suggestive effect of the defendant’s being seated at the trial table next to defense counsel. We know of no such duty on the part of either the State or the court, and appellant cites no authority to support his position. This Court has held that an accused has no constitutional right to be placed in a lineup.

Bowen v. State, 5 Md. App. 713 , 249 A. 2d 499 (1969). It has also held that the conduct and direction of a trial is always within the sound discretion of the presiding judge. Cummings v. State, 7 Md. App. 687 , 256 A. 2d 894 (1969). In Alston v. State, 11 Md. App. 624, 629 , 276 A. 2d 225, 228 (1971), this Court considered a similar request.

The Court at 629-630 said: “Although such practices as seating an accused in the audience at his trial for purposes of identification are widely used, and approved, the propriety, however, of various in-court identification techniques are still tied to the rule that the overall conduct of a trial is subject to the ²⁸⁷ sound discretion of the trial judge. Moreover, this Court will not interfere with that discretion unless the trial judge clearly abuses it and, as a result, the accused is prejudiced. Turner v. State, 7 Md. App. 74 ." 2 In denying appellant’s motion, the trial court called attention to the fact that there were only two or three other individuals in the courtroom at the time of trial and that they were individuals closely resembling the defendant and were apparently brought there for the purpose of misleading the jury. Under questioning, defense counsel admitted having requested their presence “to see if the complaining witness could identify the defendant if he was not seated at the counsel’s table.” We hold that the trial court did not abuse its discretion and acted fully within its judicial prerogative in not permitting the in-court identification to become a game of judicial Russian roulette.

See White v. State, 23 Md. App. 151, 158 , 326 A. 2d 219 (1974).

III

Appellant contends that the trial court erred in denying the motion for dismissal and/or continuance which he made when during the course of the trial it developed — through the testimony of one of the alleged victims — that the date of the offense against Mr. Smith was actually December 2, 1974, rather than December 1, 1974, as charged in the criminal information. The court permitted the State to amend the information to reflect'the correct date. Rule 714 a., Maryland Rules of Procedure provides that, “The court may permit an indictment or information to be amended at any time before verdict as to matter of form, but not as to matter of substance.” The case law governing the granting of amendments of form is that an indictment or information may be corrected ²⁸⁸ provided the amendment does not alter any of the essential elements of the offense and results in no prejudice to the rights of the defendant. Corbin v. State, 237 Md. 486 , 206 A. 2d 809 (1967); Watkins v. State, 4 Md. App. 47 , 240 A. 2d 787 (1968).

Appellant contends that the denial of his motion and the permission granted the State to amend the information was prejudicial to his ability to prepare his defense, pointing out that the defense was barred from finding witnesses to attest to the defendant’s location on the date in question. The record discloses, however, that defendant and his counsel were in possession of the police offense report which clearly stated the date of the offense to be December 2, 1974. In addition, when .the defendant testified on the second day of trial as to his activities on December 2, 1974, he claimed to have been at home all day; and a number of witnesses were called by the defense to substantiate his statement. Appellant made no proffer of any additional witnesses to verify his alibi, and no request was made for any additional witnesses.

We find that the court did not commit prejudicial error in denying appellant’s motion for dismissal and/or continuance upon the amendment of Criminal Information No. 67500340.

IV

Appellant next argues that the trial court abused its discretion in refusing to permit a defense witness to testify after