Poling v. State

Thompson, J., delivered the opinion of the Court. Lewis Joseph Poling, the appellant, was convicted of murder in the second degree in the Circuit Court for Baltimore County, Judge W. Albert Menchine presiding with a jury. He was sentenced to a term of twelve years. On appeal, Poling complains that his trial counsel was incompetent, that the lower court erred in allowing a witness to exercise his privilege against self-incrimination, and that the Court erred in not granting his motion for judgment of acquittal.

There was evidence from which the jury could have found: That Poling became involved in a bizarre argument with the operator of a filling station; that after having pushed the op ⁴⁷ erator he, Poling, pulled a knife and stabbed the victim to death; and the victim had no weapon in his hand and was backing away from Poling at the time of the stabbing. There was some indication that money was stolen, but that evidence was not necessary to support the verdict of second degree murder. Poling first contends that his trial counsel was inadequate. The issue was not raised below; therefore it is not properly before this Court, Maryland Rule 1085.

This rule has been repeatedly invoked in similar situations “because, among other reasons, counsel has had no opportunity to defend himself”, Jordan v. State, 2 Md. App. 415 , 234 A. 2d 783 . Probably a more important reason for invoking the rule is that the absence of a complete record on the issue makes such a determination impracticable if not impossible. Secondly, Poling contends that a co-defendant, Masters, should have been allowed to testify. Masters had been indicted along with Poling and one Gilbert, but ten of the eleven counts in the indictment against Masters had been stetted and he pleaded guilty to assault only.

When Masters was called to testify, he was asked his age. At this point Masters’ attorney objected stating that Masters had a preliminary statement to make. Masters then stated that “By advice of counsel, I would like to respectfully refuse to testify on the grounds that I might incriminate myself under the Fifth Amendment.” Judge Men-chine excused the witness. The privilege against self-incrimination is provided for in Article 22 of the Maryland Declaration of Rights, and the Fifth Amendment to the Constitution of the United States which is applicable to the States by the Fourteenth Amendment to the Constitution of the United States, Malloy v. Hogan, 378 U. S. 1 , 84 S. Ct. 1489 , 12 L.Ed.2d 653 .

If the privilege is asserted in good faith and there is a reasonable basis for claiming the privilege, witness will then not have to testify, Franklin v. State, 239 Md. 645 , 212 A. 2d 279 , Boone v. State, 3 Md. App. 11, 15-16 , 237 A. 2d 787 . The privilege is a personal one to the witness although the witness’s counsel may assert the privilege for him in the proper situation, Farmer v. State, 5 Md. App. 546, 550-52 , 248 A. 2d 809 . Since the privilege is personal to the witness the defendant may not assert error on appeal if the ⁴⁸ witness is compelled to testify and in doing so implicates the defendant, Butz v. State, 221 Md. 68 , 156 A. 2d 423 , 426-27 which distinguished and overruled in part, Chesapeake Club v. State, 63 Md. 446, 455-58 . However, the case at bar involves a more intricate problem than the one generally presented wherein a witness is called by the State and is compelled