Newkirk v. State

Morton, J., delivered the opinion of the Court. The appellant, Immis Newkirk, was tried before Judge J. Harold Grady in the Criminal Court of Baltimore, sitting without a jury. He was found guilty of murder in the first degree and guilty of two counts of robbery with a deadly weapon. After a motion for a new trial was denied, appellant was sentenced to life imprisonment ¹³⁰ for the murder conviction and to two concurrent twenty year sentences for the armed robberies to run consecutively to the sentence imposed for the murder.

The record indicates that Grojnem Chlewicki was with his wife, Rose Chlewicki, in their grocery store in Baltimore City on the morning of August 15, 1969, when three men entered the store. As this was a Friday morning, there was a large amount of cash in the register to handle check cashing. Mrs. Chlewicki testified that she knew the three men since they had been in the store previously. She identified appellant by his nickname “Hawk.” Mrs. Chlewicki further testified that as the three men approached the counter, appellant shot her husband with a small revolver.

The three assailants then went behind the counter, one took Mr. Chlewicki’s wallet and another took the money from the register. Mrs. Chlewicki described the gun as being a small revolver with one side of the handle black and the other side white. Mr. Chlewicki was dead on arrival at the hospital. Two of the assailants were arrested shortly after the robbery and murder.

The appellant was not apprehended until July 1970, almost a year later. Sgt. Robert DePaula of the Baltimore City Police Department testified that after appellant had been arrested and given his “Miranda” warnings, Miranda v. Arizona, 384 U. S. 436 , he blurted out: “I didn’t mean to shoot him, the gun went off accidentally. I want a lawyer.” No questions concerning the crime were asked of appellant by the police.

The State’s final witness was James Norris, a friend of appellant, who, at the time he testified, was an inmate in the Maryland House of Correction at Jessup. Norris testified that appellant and the other two assailants discussed their plans for the robbery with him approximately two weeks before its commission. Norris said that he refused to participate in the planned robbery as he knew Mrs. Chlewicki. He testified that he saw appellant approximately one-half hour after the robbery in the house of one of the assailants and also observed a large ¹³¹ amount of money in their possession.

Norris said that he supplied the gun that was used and that he later gave it to the police. He also said that appellant told him that the shooting was an accident. At the close of the State’s case, appellant moved for a judgment of acquittal. His counsel argued generally that the State did not prove its case as to any of the indictments and, also, that the armed robbery indictments were defective because they were signed by Milton B. Allen, the State’s Attorney for Baltimore City.

It appears that appellant had initially retained Mr. Allen to defend him on the murder charge before Mr. Allen was elected State’s Attorney. He does not question the validity of the murder indictment since it was returned prior to Mr. Allen’s election and does not bear his signature. After his motion for judgment of acquittal was denied, appellant rested his case without presenting any evidence. In this appeal, appellant argues (1) that the two armed robbery indictments were invalid because they were signed by appellant’s former counsel and (2) that the evidence was insufficient to sustain the convictions.

(1) Md. Rule 712 (e) provides: “An indictment, except a warrant, shall be signed by the State’s Attorney. An objection to an indictment on the ground that it was not signed may not be made after a plea to the merits has been entered.” Appellant does not contend that the indictments physically lacked a signature as required by the rule. He appears to argue, however, that the facsimile signature of Mr. Allen was an unauthorized signature; that since Mr. Allen had previously represented the accused, he lacked authority because of a conflict of interest 1 to affix his signature to the indictment with the result that the in ¹³² dictment, in point of law, actually lacked a signature as required by the Rule. If this is, in substance, the purport of his argument, we