Midgett v. State

³⁰ Hornby, J., delivered the opinion of the Court. This is an appeal by Curtis Edward Midgett, (Midgett or the defendant), who was convicted by a jury in the Criminal Court of Baltimore (Warnken, J.) of armed robbery and kidnapping and was sentenced to consecutive terms in the Maryland Penitentiary of twenty years for armed robbery and fifteen years for kidnapping, a total of thirty-five years. The defendant was tried jointly with Morris Ruckle, (Ruckle), and John Davis, (Davis), on separate indictments for. armed robbery and similar offenses, and a joint indictment for kidnapping. Davis, who was convicted of both offenses and was sentenced to a total of fifteen years, did not appeal.

Ruckle, who was also convicted of both crimes and was also sentenced to a total of thirty-five years, appealed, but subsequently dismissed his appeal. In substance the defendant was charged in the first count of the indictment with armed robbery by feloniously robbing Charles W. Zeller, a police officer; with a dangerous and deadly weapon, and violently stealing the police officer’s service revolver, police belt and holster, and flashlight, having a total value of $76.98. The indictment also charged the defendant with five other offenses in six counts, but all except the first count were abandoned by the State at the close of all the evidence. The kidnapping indictment charged the defendant with feloniously, forcibly and fraudulently “* * * [carrying] and * * * [causing] to be carried within this State a certain person, to wit, Charles W. Zeller, with intent to have [him] carried within this State.” The State adopted the statement of facts prepared by counsel for the defendant as substantially correct.

We shall do likewise insofar as we deem it necessary for the purpose of this decision. A comparison of the summary of facts in the brief with the record demonstrates its complete accuracy. 1 The defendant and Ruckle came to Baltimore from Chester, ³¹ Pennsylvania, on January 15, 1957, for the purpose of robbing the White Coffee Pot Restaurant. They enlisted the aid of Davis, and together they drove around Baltimore in Ruckle’s automobile making plans for the hold-up by observing the movements of the supervisor who collected the receipts from the various restaurant sites. All three drove back to Chester and returned to Baltimore the next day in the defendant's automobile, at which time they made further exploratory observations.

They decided to go to the main office or commissary of the chain of restaurants on Frederick Avenue to determine whether the supervisor had brought the money there, and, if so, to rob him in the office. They turned off Frederick Avenue into Landwehr Lane, a small street or alley behind the restaurant office, and pulled into a parking area. The defendant and Ruckle got out of the automobile and walked around to the front of the restaurant’s office, but, being unable to determine if the money was there they returned to the automobile. It was then approximately 11:30 P. M., and, as they reached the automobile, they saw the headlights of another automobile coming down the alley.

The defendant got back in his automobile but Ruckle, when he saw it was a police car, crouched down on the other side of the automobile. The sole occupant of the police car was Officer Charles W. Zeller, (Officer Zeller or officer), who stopped his car, came over to the defendant and asked him what his business was there. The defendant got out of his automobile and replied that they were just leaving. The officer asked to see the defendant’s registration card.

The card was shown. But, the defendant, who did not have an operator’s license with him, volunteered that he was not driving, and that the other man was. In the meantime, the officer was shining his flashlight in all directions, and he asked the defendant where the other man was whom the officer had seen walking up the alley. The defendant replied that he was relieving himself.

The officer then started around to the other side of the defendant’s automobile and, as he cleared the bumper, he encountered Ruckle. The testimony of the officer at this point is vivid: “[Ruckle] jumped up from the right side of the ³² automobile * * * and shoved a long barrel 38 pistol at me and said, ‘Officer, don’t move or I will kill you.’ At that time I went for my gun and he said, ‘Don’t pull that gun out.’ So, I put my hands up in the air when he threatened me, and my one hand went in the air and one hand went in my pocket * * The defendant was behind the officer as Davis got out of the automobile. The officer began backing up and kept “hollering all the time, ‘Don’t shoot, you can have the gun.’ ” When the officer backed up to the wall, “he put his hand down real quick to the gun” and the defendant walked between the officer and Ruckle and moved the officer’s hand away from the revolver. The officer admitted on cross-examination that he “kept an idea of trying to pull * * * [his] hand down to * * * [his] gun before they took it away from * * * [him].” Ruckle then directed the defendant to get the officer’s revolver but he could not get it out of the holster.

In order to get the revolver, Davis and the defendant removed the officer’s coat and with the officer’s help succeeded in getting the belt and holster off with the revolver in it. The defendant then took the “gunbelt, nightstick, flashlight all was together, or whatever it was, and put it in the front of the car.” The defendant was unable to get the revolver out of the holster because of a spring which he did not know how to work. He testified that he would not have taken the gunbelt and holster had he been able to remove the revolver from the holster. The officer pleaded with the man to take his revolver and let him go, but Ruckle replied: “You have caught us in a big act, we have got to take you with us.” The officer was placed in the defendant’s automobile.

Before they drove off, Davis went over to the police car, took the keys out of the ignition switch and threw them away. They drove out the Washington Boulevard towards Washington, looking for a place to tie up the officer and leave him, until they came to a point about ten miles out of Baltimore when they pulled into a road near a farm house, stopped and tied the officer’s hands and legs with rope. The officer testified that before he was taken out of the automobile Davis asked him how much money he had. When informed that the ³³ officer had a dollar, Davis stated: “I love to rob a policeman, I think I will take the dollar.” The officer told Davis he could have it, but he replied: “No, I won’t take it.” According to the officer, Davis then called attention to the officer’s watch but “he decided not to take * * * [it].” The officer was then taken from the automobile and was left tied to a tree near the farm house.

The only articles taken from the officer were his belt, holster, revolver and flashlight. All of these items, except the flashlight, were subsequently recovered and offered in evidence. The robbery indictment charged the defendant only with the larceny of the items enumerated. After leaving the officer, the defendant and his companions drove towards Washington.

After going about two miles they turned around and drove past the place where they tied up the officer, who in the meantime had freed himself. It was at this time and in this vicinity that Ruckle finally succeeded in freeing the revolver from the holster. He threw the belt and holster out the window and down a bank alongside the highway. They then proceeded again in the direction of Washington.

When they got near Silver Spring, Ruckle got out of the automobile, took his own revolver and the officer’s and hid both in a woods off the high-way. At Silver Spring Ruckle left the automobile and Davis and the defendant proceeded to the outskirts of Washington, where Davis got out, boarded a bus and returned to Baltimore. The defendant drove into Washington alone, stopped for gas and found the officer’s flashlight under the front seat of his automobile. He threw it out the window on a street in Washington and drove back to Chester.

In the meantime, Ruckle telephoned from Silver Spring to his brother in Chester, who drove to Silver Spring with an uncle to pick up Ruckle. Before leaving Silver Spring Ruckle recovered the revolvers he had hidden and took both back to Chester. For a short period of time the uncle, at Ruckle’s request, kept the officer’s revolver under the mattress of his (the uncle’s) bed. A day or two later the defendant called on Ruckle in Chester, at which time Ruckle gave the officer’s revolver to the defendant and told him to throw it in the river.

The defendant took the revolver, left Chester and drove south. Near Wilmington ³⁴ he hid it on a side road and proceeded to Florida. The revolver was recovered from some shrubbery in Claymont, Delaware, where the defendant had hidden it. During the course of the trial, the defendant became involved in a dispute with his court-appointed counsel concerning certain aspects of his defense, including the right of removal of the trial outside of Baltimore City.

The defendant prepared a letter to the trial judge, setting forth in some detail the nature of the disagreement between himself and his counsel, wherein he appealed to the judge for permission to question any and all witnesses personally and above all to have Officer Zeller return to the witness stand. He had the note. passed up to the Bench while the State was still putting on its case. The judge did not read the letter. Subsequently, when the defendant took the witness stand in his own behalf he proceeded to berate his counsel for refusing to ask questions of the State’s witnesses on cross-examination, particularly the officer, and for not withdrawing from the case so that he could personally ask the questions he wanted asked.

The trial judge promptly intervened in the controversy, and following the colloquy which then ensued between the court and the defendant, handed the letter to the defendant’s counsel without reading it and instructed counsel to proceed. At the close of all the evidence the defendant moved for a directed verdict on both the robbery and kidnapping charges. Both motions were refused. After the arguments of counsel on both sides, the trial court orally gave its advisory instructions to the jury on both charges.

The defendant excepted to the instructions with respect to the charge of kidnapping (i) because “kidnapping” was not properly defined, (ii) because the indictment did not charge the crime of kidnapping, and (iii) because the indictment was silent as to an “intent to conceal the policeman”. The defendant did not specifically except to the court’s instruction as to the “standstill” kidnapping. And no question as to the failure of the indictment to charge the crime of kidnapping was raised on appeal. The jury retired to consider its verdict at 3:34 P.M. It did not return with a verdict until 6:32 P.M. In the mean ³⁵ time, the defendant, and his co-defendants, were removed from the courtroom and confined in the lockup in the basement of the court house, where they remained until the jury returned to announce its verdicts.

After the jury retired to deliberate, the court proceeded to hear and dispose of other matters. While so engaged the bailiff or clerk handed the court a note from the foreman of the jury which stated in substance: “If found guilty of kidnapping can we be assured the death penalty will not be given?” Counsel for the defendant was absent at the time, as was the defendant, whereupon the court wrote on the note the word “Yes” and returned it to the jury. The jury continued its deliberations, and after the lapse of a considerable period of time, the note was again sent to the court with substantially the following question: “Can verdict be stated guilty of kidnapping with assurance of no death penalty?” On this occasion counsel for all of the defendants, but not the defendants themselves, were present, and the court showed them the whole note. Thereupon the court wrote in substance the following answer and again returned the note to the jury: “If verdict is guilty, death sentence will not be imposed.” The jury then came in with a verdict of guilty on both charges.

After the second note had been submitted to the court, and while the defendant was still absent, the trial judge dictated the following statement into the record: “The jury had sent a note to me in * * * [the kidnapping case]. Can we find a verdict of guilty with assurance of no death sentence and I have written on there, yes. Is that agreeable to you all?” Obviously, the words “you all” referred to counsel for all of the defendants. If counsel made a reply to the court’s question, it was not recorded by the reporter.

After the verdicts had been received the court advised the jury, among other things, to the effect that the matter of punishment did not concern the jury, and reminded it that the Assistant State’s Attorney had advised it in his argument that the State was not seeking capital punishment and that in all probability the judge would not impose such sentence. The defendant contends: (i) that his motion for a directed verdict on the charge of robbery should have been ³⁶ granted; (ii) that the jury was incorrectly instructed on the law applicable to the charge of kidnapping; (iii) that it was reversible error for the trial court, in the absence of counsel, to answer a question propounded by the jury after it had retired and was still deliberating; (iv) that it was reversible error for the trial court, in a capital case, to assure and promise the jury that the death penalty would not be imposed by the court if the jury should find the defendant guilty of kidnapping; and (v) that the defendant was denied a fair trial when the trial court refused to consider the defendant’s complaints as to certain disagreements between the defendant and his court-appointed counsel. We shall consider the third and fourth points or questions of law first. It is conceded that the defendant was absent from the courtroom on the two separate occasions when the trial court undertook to answer questions which had been addressed to the court by the jury.

The answers were not given to the jury in open court but through an exchange of notes while the jurors remained in their jury room. It is also conceded that on the first occasion counsel for the defendant was absent; and that on the second occasion counsel was present and was informed by the court of the questions propounded and the answers thereto. In this State there is no doubt that an accused in a criminal prosecution for a felony has the absolute right to be present at every stage of his trial from the time the jury is impaneled until it reaches a verdict or is discharged, and there can be no valid trial or judgment unless he has been afforded that right. The constitutional guarantee includes the right of the accused to be present (i) when the jury is charged or instructed on the facts, the law or the form of the verdict, before it has begun its deliberations or afterwards upon its request or by direction of the court; (ii) when the court is repeating a charge or instruction previously given in whole or in part; (iii) when the court communicates with the jury in answer to questions propounded by the jury, or (iv) when there shall be any communication whatsoever between the court and the jury; unless the record affirmatively shows that such communications were not prejudicial or had no tendency ³⁷ to influence the verdict of the jury.

Furthermore, the right to be present is personal to the accused and cannot be waived by his counsel. Duffy v. State, 151 Md. 456 , 135 A. 189 (1926); La Guardia