Montgomery v. State

¹²¹ Scanlan, J., delivered the opinion of the Court. The appellant, Gary Lewis Montgomery, was convicted by a jury in the Criminal Court of Baltimore under an indictment (2942), charging him with robbery with a deadly weapon of Joseph Crawford, and under a second indictment (2943), charging him with robbery with a deadly weapon of Bernard Dembeck, President of the Weekly Savings and Loan Association, Baltimore. Judge Liss, who presided at the trial, sentenced the appellant to ten years on his conviction under the first indictment, and to an additional, consecutive sentence of fifteen years on his conviction under the second indictment. Montgomery has appealed from the convictions and judgments.

QUESTIONS PRESENTED Appellant’s primary attack on the judgments below is his claim that the evidence to sustain the verdict was legally insufficient, in that testimony of an admitted accomplice was not corroborated by other evidence. Additionally, he argues in this Court that: (1) The trial court erred in allowing the jury to consider the testimony of Crawford, a witness for the State, whose testimony the appellant contends was so contradictory as to lack probative value. (2) The trial court denied appellant effective representation by counsel. (3) The trial court was prejudiced against the appellant to the extent of denying him a fair and impartial trial.

For reasons which appear below, we conclude that the trial judge did not err in his rulings or act arbitrarily in his conduct of the trial, except that appellant’s motion for a judgment of acquittal under the second count should have been granted since the testimony of the admitted accomplice was not sufficiently corroborated by other evidence. ¹²² THE ACCOMPLICE’S TESTIMONY CONCERNING THE ROBBERY OF THE SAVINGS AND LOAN ASSOCIATION WAS NOT SUFFICIENTLY CORROBORATED James F. Mills, conceded by the State to have been an accomplice of the appellant, testified for the prosecution. Mills was given “immunity” both before the grand jury and in connection with his testimony at Montgomery’s trial. 1 Mills testified that the appellant and James Rose came to his house on the late evening hours of July 8, 1971, to ask him if he wanted to go to Virginia to take part in the burglary of a drug store. Mills agreed and the three of them started out to Virginia in an automobile owned by a girl friend of Rose. However, the planned Virginia criminal enterprise was abandoned when the headlights of the car went out.

The three then decided to get some wine and ride around. At the intersection of Milton Avenue and Fayette Street, in Baltimore, Joseph Crawford pulled up behind them in a 1966 Pontiac car and offered to engage their automobile in a race. They rejected Crawford’s invitation, but invited him to have a drink of wine which he accepted. The four men then went to the house of Mills’ sister where they continued to drink and began to play cards.

At this time, Rose, Mills and Montgomery, according to Mills, agreed on a plan to “take” Crawford’s car from him. Rose suggested that all of them ride in Crawford’s car to get some more wine. While enroute to replenish the wine supply, Mills, in furtherance of the plan to steal the car, reached over and turned off the ignition. Crawford, who was driving, jumped at Mills, but at that point the appellant, who was sitting directly behind Crawford, reached over from the back seat and struck him with a blackjack. ¹²³ Mills testified that Rose then pulled Crawford out of the car.

The victim immediately jumped up and ran away. The three drove Crawford’s Pontiac to a location where Rose had parked his own car. Mills then drove Rose’s car, joining Montgomery and Rose at the latter’s apartment. There, Mills testified, Rose removed spare tires, a tool chest, and other items from the trunk of Crawford’s car and took them into his apartment.

The three men stayed at Rose’s apartment for about a half an hour and then went to Montgomery’s house where they stayed until about 6:00 o’clock in the morning. They then procured nylon stockings from Rose’s girl friend, intending to use them as face masks in a robbery, according to Mills. At this point in time (6:00 a.m., July 9, 1971), the trio had not made up their minds where or what the robbery was to be. Rose first suggested a bank on O’Donnell Street to which the trio went about 8:00 o’clock in the morning.

They rode in Crawford’s car to this first bank, but soon abandoned the attempt to rob it. Mills testified that he wanted to go home at this point, but that Rose convinced him that he should join the other two in robbing the Weekly Savings and Loan Association on Glover and Fait Avenue. Mills then described how all three entered the savings and. loan association and robbed it at about 9:30 a.m. During the holdup, both appellant and Rose had .22 caliber pistols, but the appellant kept his in his pocket while Rose used his gun as a threat against three people who were in the bank.

After completing the holdup, Mills testified, the three jumped into Crawford’s Pontiac and drove to Pratt and Castle Streets where they parked the vehicle. From there, they walked to Rose’s mother’s house where they divided the money. Mills recalls that his “share of the money was approximately one thousand dollars.” Joseph Crawford was called as a witness. He identified the appellant as one of the three men with whom he had been drinking on the late evening of July 8, 1971 and the ¹²⁴ early morning of July 9, 1971.

He did not identify the other two, including Mills. His testimony as to how the car was taken from him was generally similar to Mills’ testimony concerning the manner in which the three had stolen the Pontiac. Bernard Dembeck, President of the Weekly Savings and Loan Association, was called to the stand to describe the holdup which occurred on the morning of July 9, 1971. Because the three participants had worn masks made of nylon stockings, Dembeck was unable to identify any of them.

The defense then called three alibi witnesses, whose testimony basically was that appellant was baby sitting for his sister at the time of the bank robbery and that they did not see Mills come to Montgomery’s house at any time on July 8, 1971. Despite its rejection in some jurisdictions, 2 Maryland has long adhered to the rule that an accomplice’s testimony must be corroborated by other evidence, if such testimony is to serve as a basis of a conviction. Luery v. State, 116 Md. 284 , 81 A. 681 (1911); Wright v. State, 219 Md. 643, 647 , 150 A. 2d 733 (1959), cert. denied, 361 U. S. 851 (1959); Boone v. State, 3 Md. App. 11, 16 , 237 A. 2d 787 (1968), cert. denied, 393 U. S. 872 (1968). In Luery , where the Court of Appeals first enunciated the rule for application in Maryland, the Court stated: “Hence it would seem to be safer to require some corroboration * * *.

As the reason for the rule, as adopted by most Courts, is that the testimony of an accomplice alone and unsupported is regarded as too doubtful to be safe, the important matter is to have him supported in at least some of the material points involved, tending to show the guilt of the accused.” Id. at 293-4 . ¹²⁵ In Wright v. State, supra, the Court of Appeals redefined the rule to require that “the corroborative evidence must support the testimony of the accomplice as to some of the material facts tending to show that the accused was either identified with the perpetrators of the crime, or had participated in the commission of the crime itself.” Id. at 650. In Early v. State, 13 Md. App. 182 , 282 A. 2d 154 (1971), this Court reviewed and applied the general rules respecting the sufficiency of evidence to corroborate an accomplice’s testimony. There, we said: “ ‘Corroborate’ means to strengthen, not necessarily the proof of any particular fact to which an accomplice has testified, but the probative, criminating force of his testimony.’ Wright v. State, 219 Md. 643, 649 , quoting with approval 1 Underhill Criminal Evidence (5th ed. 1956) § 185. It is settled that the corroborative evidence must tend either: (1) to identify the defendant with the perpetrators of the crime, or (2) to show the defendant’s participation in the crime itself.

Foxwell v. State, supra; Spies v. State, 8 Md. App. 160 . If with some degree of cogency it tends to establish either of these matters it would be sufficient, authorizing the trier of fact to credit the accomplice’s testimony even with respect to matters as to which there had been no corroboration. McDowell v. State, supra, at 213. Corroboration need not extend to every detail.

Brown v. State, 210 Md. 301 , 305 and cases there cited. So it is not necessary that in and of itself the corroborating evidence be sufficient to convict,