Midgett v. State

Brunb, C. J., delivered the opinion of the Court. The appellant, Curtis E. Midgett, was indicted on charges (a) of kidnapping (Indictment No. 1157 of 1959), (b) of ²⁸⁶ armed robbery and simple assault (as well as other charges abandoned by the State at and after Midgett’s first trial, below mentioned) (Indictment No. 250 of 1957), and (c) of conspiracy (Indictment No. 2120 of 1958), and was tried in a single proceeding on all of these charges before Judge Allen and a jury in the Criminal Court of Baltimore. He was (a) found guilty under both counts of the kidnapping indictment (kidnapping with intent to carry the victim within the State and kidnapping with intent to conceal him within the State), (b) found not guilty of armed robbery but guilty of assault, and (c) found guilty of conspiracy. His motion for a new trial was denied and he was sentenced to a total of thirty-five years’ imprisonment—thirty years for kidnapping and five years for conspiracy, these sentences to run consecutively, and five years for assault, this sentence to run concurrently with the others.

He appeals. The first indictment pertained to the kidnapping of one Charles W. Zeller, an officer of the Baltimore City Police Department, the second to the disarming of that officer, and the third to a conspiracy to rob employees of a chain of restaurants. The execution of that plan was interrupted by the police officer’s arrival on the scene of intended action. The present appeal is a sequel to Midgett v. State, 216 Md. 26 , 139 A. 2d 209 .

In that case Midgett’s prior convictions on charges of kidnapping and of armed robbery were reversed and a new trial on each charge was awarded. Midgett, one Morris Ruckle and one John R. Davis had been indicted and tried together in 1957 under an indictment (No. 446 of 1957), which undertook to charge them with kidnapping. The opinion of this Court commented upon the inadequacy of that indictment to support some of the instructions given. Midgett, Ruckle and Davis were also charged in separate indictments against each of them with robbery with a deadly weapon, etc., that against Midgett being No. 250 of 1957, on which he was retried in the present case.

All three were found guilty at the original trial on the kidnapping and robbery charges. Davis did not appeal. Midgett and Ruckle did. No conspiracy indictment was involved in that trial.

Following the remand Midgett moved to dismiss the kid ²⁸⁷ napping indictment (No. 446 of 1957), which had been criticized but not actually held invalid by this Court on Midgett’s first appeal. After full argument of the matter, Judge Allen, on March 9, 1959, granted the motion and dismissed that indictment. He directed, however, that Midgett be held in substantial bail (which he did not furnish) pending re-indictment within a limited time. Within that time Midgett and Ruckle were re-indicted by Indictment No. 1157 of 1959, and Midgett was tried thereunder.

Midgett also filed motions to dismiss the other indictments against him, but these were denied. On the above motions, Midgett was represented, at his request, by the same court appointed counsel who had represented him on his first appeal. Such counsel was appointed only for this purpose. Otherwise, Midgett flatly declined the appointment of counsel on more than one occasion, including his rearraignment at the start of the trial out of which this appeal grows.

He elected to try his own case. On this appeal he is again represented by court appointed counsel (apparently appointed at Midgett’s request or with his consent), who has discharged his duties with diligence and ability. The facts as developed in the present cases are essentially the same as those on Midgett’s first appeal and are fully set out in this Court’s opinion in that case, which was written by Judge Horney. (See 216 Md., bottom of page 30—top of page 34).

They will not be here repeated at length. In brief, there is evidence showing: (1) that Midgett, Ruckle and Davis entered into a conspiracy, originally made in Pennsylvania which they renewed and attempted to carry into effect in Maryland, to rob employees of the White Coffee Pot restaurants in Baltimore of cash receipts of such restaurants; (2) that in furtherance of this plan, on the night of January 16, 1957, they went to a vacant lot adjacent to the commissary of the White Coffee Pot in Baltimore, intending to rob a collector for the restaurants there; (3) that they were interrupted in this enterprise by Officer Zeller who arrived on the scene alone in a police car; (4) that while he was investigating their presence and was inquiring of Midgett as to their purpose in being on the lot and was asking to see Midgett’s ²⁸⁸ driver’s license (Midgett then being at the wheel of Ruckle’s car), Ruckle appeared from a place beside the car where he had been hiding, covered the officer with a 38 pistol and backed him up against a wall; (5) that Midgett, or Midgett and Davis, acting in accordance with Ruckle’s instructions, then disarmed the officer, taking his belt, holster, pistol and flashlight, which they placed in Ruckle’s car; (6) that Midgett, Ruckle and Davis then put Officer Zeller in Ruckle’s car, drove him out into the country, bound his hands and feet, gagged him, tied him to a tree and left him there. This appeal presents a number of questions. The first is whether or not Morris Ruckle, Midgett’s codefendant in the kidnapping and conspiracy cases, was properly allowed to refuse, on the ground of possible self-incrimination, to testify on behalf of Midgett.

A consideration of this question calls for some examination of Ruckle’s status with regard to these charges. Following their original trial both Midgett and Ruckle appealed. While the appeal was pending, Ruckle proceeded, of his own motion, to dismiss his appeal. Following the reversal of Midgett’s convictions and the award of a new trial as to both the kidnapping and robbery charges, Ruckle sought through Post Conviction Procedure Act proceedings to obtain his own outright release.

Judge Tucker held that Ruckle was entitled to relief against the judgment rendered at the first trial, since Ruckle, like Midgett, had been “denied 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.” He concluded that an appropriate order under the Post Conviction Procedure Act (Code, Art. 27, Sec. 645 G) was to set aside the judgment and sentence against Ruckle and to grant him a new trial, which was the same relief as had been granted to Midgett by this Court, but that Ruckle was not entitled to the preferred status for which he contended. Ruckle applied for leave to appeal from Judge Tucker’s order entered in accordance with this decision and this application was pending when Midgett was retried in June, 1959. This Court agreed with Judge Tucker’s conclusion and accordingly denied Ruckle’s application for leave to appeal. Ruckle v. Warden, 220 Md. 683 , 155 A. 2d 69 . [This Court suspended ²⁸⁹ the operation of its order to allow Ruckle time to apply to the Supreme Court of the United States for a writ of certiorari, which was denied on October 10, 1960. 29 U. S. L. Week 3104.] Midgett’s chief ground of complaint as to the allowance of Ruckle’s claim of privilege is that Ruckle was not sworn and that he could not claim the privilege except under oath.

It would have been the proper practice first to have had him called to the stand and sworn. His interrogation should then have proceeded to the point where he claimed the privilege as a ground for not answering a question. Chesapeake Club v. State, 63 Md. 446 ; Adams, et al. v. State, 200 Md. 133 , 88 A. 2d 556 ; 3 Wharton, Criminal Evidence (12th Ed.), p. 37. Indeed, the latter work states “The privilege can only be claimed after the witness has been sworn and at the time the questions are put.” People v. Weiger, 100 Cal. 352 , 34 P. 826 , is cited in support of this statement.

That case seems to hold that this is the only manner in which the witness can effectively invoke the privilege, and that if he fails to claim the privilege in this way and proceeds to testify, the testimony so given is deemed voluntary and may be used against him. The bases for the rule are (i) that the witness has the right to determine whether or not to invoke the privilege, not that the rule is for the exclusion of unreliable evidence, and (ii) that the court must be in a position to determine whether the claim of privilege is in good faith or lacks any reasonable basis. Butz v. State, 221 Md. 68 , 156 A. 2d 423 , makes the first basis for the rule abundantly clear. We there overruled a holding in the Chesapeake Club case, which had permitted the defendant to take advantage on appeal of the erroneous denial of the privilege of a witness.

The rule adopted in the Buts case that the privilege is that of the witness and not of the defendant and that the defendant cannot take advantage of the privilege if the witness does not, is in accord with the English rule and the majority rule prevailing in this country. 1 ²⁹⁰ The instant case presents the converse of the situation in both the Chesapeake Club and the Butz cases in that in each of those cases the testimony was admitted despite the defendant’s objection, but in the instant case the privileged testimony was excluded despite the defendant’s effort to obtain it. The rule of the Butz case is, therefore, not applicable here. Our question is whether the defendant Midgett has been improperly deprived of whatever benefit he might have obtained from the testimony of Ruckle. There is no proffer of what Ruckle’s testimony would have been.

Apparently it was Midgett’s aim to show that at the time when the police officer surprised the would-be robbers, he, Midgett, acted under compulsion from Ruckle in disarming the police officer and in helping to kidnap him. (By no stretch of the imagination could such evidence have had any bearing upon the charge of conspiracy to rob the restaurant employees.) Midgett may also have wished to support his contention (which might be a matter of extenuation but certainly not of innocence) that he, Midgett, did not wish to take the officer’s life and that he gave him back his own (the officer’s) overcoat and also gave him a comforter to reduce the likelihood of his freezing to death when Midgett and his companions left him bound hand and foot, gagged and tied to a tree, on a lonely road on a bitterly cold winter night. Assuming that Midgett sought to establish each and all these contentions through Ruckle’s testimony, we think it too clear for argument that testimony to this effect would have tended to incriminate Ruckle, if he should be tried again on charges of armed robbery and of kidnapping. This, as we have seen, was at least a possibility at the time of Midgett’s trial.

Ruckle was named a codefendant with Midgett in the very indictment on which Midgett was then being tried on kidnapping charges; the indictment against him on charges of armed robbery was a companion case to an almost identical indictment on which Midgett was then being tried. This possibility of a second trial for Ruckle was developed in a rather extended colloquy. The genuineness of Ruckle’s danger of self-incrimination was quite apparent, and the second requirement for invoking the privilege thus was met. ²⁹¹ Midgett contends that Ruckle did not directly invoke his privilege against self-incrimination in his colloquy with the trial judge which led up to his being excused from testifying. We do not agree with this contention.

When Ruckle was produced in court Midgett stated that he was going to call him as a witness. The prosecuting attorney then stated that Ruckle had not testified in the case at any time and that he could testify if he wanted to. He then suggested that Ruckle should be “instructed as to his constitutional rights” and added that he then had a case pending in the Court of Appeals. The court quite properly proceeded to advise Ruckle of his privilege against self-incrimination.

A colloquy followed which related in part, as above mentioned, to the status of Ruckle’s case then pending in this Court and in part to the circumstances under which Ruckle would be willing to testify. He was willing to do so as to what he called the “legal charges” against Midgett. In his view, the kidnapping indictment against Midgett and himself was not valid. The trial judge informed Ruckle that he had held the indictment valid against objection by Midgett and that he would not then hear argument in Ruckle’s own case.

The court then renewed the inquiry as to whether or not Ruckle wanted to testify and to waive his constitutional right not to, and the judge carefully pointed out that Ruckle might be asked questions and give answers which might incriminate him and which might be used against him in a retrial of his own case. Ruckle replied: “Well, in that case, then, I won’t be able to testify because it would cause irreparable damage to my case.” This, we think, was sufficient to state a claim of privilege and we also think that the trial judge was correct in so interpreting it, as he did when he proceeded to rule that Ruckle had a right not to testify, since he had been made a defendant in a retrial of the case and what he might testify to might affect him adversely or do him irreparable damage. It is true that Ruckle had not actually been sworn. We think, however, that it is clear that the witness did elect to stand upon his privilege against self-incrimination and that the court was satisfied that the claim had a substantial basis.

Both of the underlying requirements for invocation of the rule ²⁹² have thus been satisfied. Although it would have been better practice that the witness should first have been put under oath, we cannot find any prejudice to the defendant from the manner in which this question was handled. The oath of the witness would have added nothing to the information (including the actual indictment against both Midgett and Ruckle) which was before the court as to the risk to which Ruckle claimed to be exposed, nor is there any room for doubt that Ruckle himself desired and elected to rely on the privilege. We may add that we find nothing to suggest that if Ruckle had first been sworn, the court’s ruling on the question of privilege would not have been correct.

In the absence of any showing or suggestion of prejudice we see no reason for reversal and remand for a new trial on this question. Another major contention of the appellant is that his conviction should be reversed because at several adjournments during the course of the trial when the jury was allowed to separate, the court did not caution the jurors against discussing the case. The appellant made no objection on this ground in the trial court. Whether or not he thereby lost any right to have this question reviewed at all in this Court, we find his contention unsustainable.

(As to reviewability, cf. Hall v. State, 223 Md. 158, 177 , 162 A. 2d 751, 762 , a death sentence case, and also Jackson v. State, 223 Md. 105, 109 , 163 A. 2d 120, 122 .) The appellant does not challenge the power of the trial ■court, in its discretion, to permit separation of the jury prior to submission, nor does he contend that the court did not permit the separations here attacked. His contention is based upon the alleged absence of admonitions. It may be well to state at the outset that separation of the jury, at the discretion of the trial court, is permitted by statute. Under Code (1957), Art. 51, Sec. 29, the “jurors sworn to try a criminal action may, at any time before the submission ■of the case to the jury, in the discretion of the court, be permitted to separate or may be kept in charge of proper officers.” The statute so providing was first enacted by Ch. 385 of the Acts of 1935 and was originally enacted as to both civil and ■criminal cases.

As to civil cases it was superseded by what ²⁹³ is now Rule 543a 8 of the Maryland Rules, and it was amended by Ch. 399 of the Acts of 1957 to delete the reference to civil cases after the adoption of the Rule just referred to, which Rule became effective January 1, 1957. It is to be noted that the statute made no distinction between civil and criminal cases and that the fact that the two types of cases are now separately dealt with—one by court rule and the other by statute—has not produced any difference in the terms of the rule applicable to either. More significantly, it is to be noted that the statute makes no distinction between different types of criminal cases. The rule is the same for capital cases, for non-capital felonies and for misdemeanors.

Separation of the jury prior to submission is permitted in each type of case. It is also quite plain that the statute itself does not require that any caution be given by the trial court to the jury. It is, however, our established practice that an admonition be given by the trial court to the members of the jury, prior to their separation, against discussing the case with others or among themselves. Unquestionably, such a specific admonition would have been given, if requested, just as the trial judge of his own motion gave such an admonition on several occasions.

We shall consider the matter first from the point of view of the statements actually made and cautions actually given by the trial court. The case lasted from Monday, June 15, through Friday, June 19, 1959, was adjourned over the week-end and concluded on Monday, June 22. No caution was given or asked at the time of the luncheon recess on the opening day, which took place just after the jury had been empanelled. During that afternoon the prosecution’s opening statement was made, the defendant reserved his, and the first witness,