Price v. State

Bruñe, C. J., delivered the opinion of the Court. The appellant, Price, was convicted in a trial by the court, sitting without a jury, of separate assaults on two Baltimore City police officers and was sentenced to six months’ imprisonment. He appeals. The actual legal issues are narrow, and they are the only issues properly before this Court on this appeal.

They are: first, whether the appellant was lawfully arrested or was properly resisting unlawful arrest; second, whether there were such discrepancies in the testimony of the prosecution witnesses that the defendant’s motions for directed verdicts on the assault charges should have been granted. (Such a motion was granted as to a third charge, disturbing the peace.) We shall take up the second of these contentions first. ³¹ Our review of the evidence indicates to us that the discrepancies in the testimony, such as the exact sequence of events and the precise place where they occurred, are of relatively slight importance and do not conflict in any material respects with the general statement of facts which we set out below. We therefore hold this contention of the appellant to be untenable. Williams v. State, 223 Md. 339, 340 , 164 A. 2d 467 ; Mason v. State, 225 Md. 74, 76 , 169 A. 2d 445 ; Dyson v. State, 226 Md. 18, 21 , 171 A. 2d 505 .

We now turn to the first and principal question. The State offered evidence, which, if believed, was sufficient to show the matters set forth below in this paragraph. As a result of a complaint initiated by a tenant in a twelve-apartment residence at 714 Madison Avenue in Baltimore, police headquarters sent out an order at 2:18 A.M. to two officers in a nearby police car to investigate a report that there was a prowler at the above address. Upon receipt of this call these officers, Goetzke and Staniewski, proceeded at once to the place directed, and on arrival were joined by a third officer, Wotjek, a foot patrolman.

Goetzke (in the lead) and Wotjek (following) entered a lighted vestibule at No. 714. This vestibule is about five by seven feet and has an outer and an inner door. In the vestibule they found the appellant, Price. As they approached, Price was facing the inner door, on which so called “pry marks” were visible, which Goetzke thought appeared to have been made in an effort to pry the door open.

Goetzke asked Price whether he lived there, Price murmured some unintelligible reply and made an immediate rush to get away. Goetzke at once tried to grab him. A struggle ensued in which Price struck, kicked and knocked down each of these officers and succeeded in breaking loose for a moment. Price was caught almost at once by Officers Staniewski and Goetzke and was subdued by the officers with the considerable aid of their night sticks.

Price was then put in a police cruising patrol vehicle and was taken to a hospital. Goetzke says that Price again attacked him en route. Goetzke received treatment at another hospital a little later for injuries which he had received. Price’s account of events is quite different.

He claims that ³² the police inquiry as to whether he lived at 714 Madison Avenue was made in an offensive manner, that he answered “No,” and that the officers forthwith started to beat him over the head with their night sticks. He also claims that the violence at the time of arrival at the hospital was entirely on the part of the police, who, he says, threw him out of the police patrol and walked on him. As to the last episode he is corroborated by the testimony of a nurse at the hospital, who, however, could scarcely have been in a position to see what preceded his being thrown out of the patrol cruiser, if he was in fact thrown out. At the trial, but certainly not during the brief moment preceding or during the struggle at 714 Madison Avenue, Price claimed that he had entered the vestibule only to get warm preparatory to continuing on his way home on a cold and snowy night.

He said that he had taken a cab somewhere on Poplar Grove Street, which is in the western part of Baltimore, to go to his home in the Mt. Winans area, which is in the southern or southwestern part of the City. The trial judge noted that 714 Madison Avenue was far off a direct route between these two points and evidently did not believe the appellant’s explanation of how he happened to be at the Madison Avenue address. As the foregoing recital indicates, some of the facts are undisputed; as to others there is a sharp conflict of testimony.

We think, as did the trial judge, that “[t]he vital question is what happened at 714 Madison Avenue.” As to the conflicts, he believed the police officers’ account of what happened there, taking note of the minor discrepancies above referred to. We find no error—much less any clear error—in his doing so; and, therefore, his findings based upon the evidence as to what occurred are not to be set aside by us. Maryland Rule 741 c; Kicks v. State, 225 Md. 560, 561 , 171 A. 2d 722 ; Reed v. State, 225 Md. 566, 573 , 171 A. 2d 464 ; Dyson v. State, supra, 226 Md. at 20-21 (to cite only three of many recent cases). We accordingly apply what we take to be the law to the facts as the trial court found them.

In determining the lawfulness of the arrest, we must do so with relation to the time when it occurred. It seems clear that ³³ there had been no arrest—merely an accosting—prior to Price’s break. See Cornish v. State, 215 Md. 64 , 137 A. 2d 170 , as to the difference. The appellant makes much of the statements of the officers to the effect that the arrest took place out on the sidewalk.

We think, however, that the officers were merely stating when it was effective practically, and that the arrest, in a legal sense, occurred when Officer Goetzke first grabbed the appellant in the vestibule, even though he did not then succeed in holding him. See the Cornish case and cases therein cited, and Hochheimer, Criminal Eaw (2nd Ed.), § 64. When the police officers found the appellant in the vestibule, they were there in response to a call about a prowler (cf. Drouin v. State, 222 Md. 271 , 160 A. 2d 85 , a burglary case), they were aware of the very early hour of the morning, the marks on the door looking like pry marks were visible and they found the appellant at and more or less facing the inner door. These facts plainly gave the officers good cause to question the appellant as to why he was there and what he was doing.

Instead of explaining, he muttered something and bolted immediately. Flight, though not conclusive, is usually evidence of guilt. Clay v. State, 211 Md. 577 , 128 A. 2d 634 ; Tasco v. State, 223 Md. 503 , 165 A. 2d 456 ; cert. den. 365 U. S. 885 . With flight added to the other facts already apparent to the officers, even if not before (and as to the prior situation we express no opinion), the officers, we think, had probable cause to believe that the appellant had just been engaged, in their presence, in committing or attempting to commit burglary.

The basis for determining probable cause in felony cases has recently been restated in Mulcahy v. State, 221 Md. 413, 422 , 158 A. 2d 80 , citing Edwards v. State, 196 Md. 233, 237 , 76 A. 2d 132 , and Brinegar v. United States, 338 U. S. 160 . As the Brinegar case shows, it means a reasonable ground for belief of guilt, which is less than evidence which would justify condemnation or conviction, but must be more than mere suspicion. “Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of rea ³⁴ sonable caution in the belief that’ an offense has been or is being committed.” ( 338 U. S. at 175-176 .) One question which is suggested or touched upon rather lightly in the appellant’s brief, but is not discussed by the State’s brief, is whether or not there is a right to detain for questioning a person found in such suspicious circumstances as those in which the appellant was found. Inferentially, the learned trial judge seems to have been of the opinion that the officers could detain the appellant for an explanation on the spot. Certainly, this would be less drastic than an actual arrest and, presumably, less objectionable from the appellant’s point of view.

There seems, however, to be no decision of this Court with regard to a right of police officers to detain a suspect for questioning without an actual arrest (but see Kauffman’s comment in The Law of Arrest in Maryland, 5 Md. R. Rev. 125, 159 (rule 5); and we find it unnecessary here to undertake to decide such a question, for if the facts would justify an arrest, a fortiori, they would justify a detention for questioning. On the general subject of detention for questioning without a formal arrest, see Culombe v. Connecticut, 367 U. S. 568 (involving interrogation during extended detention in police custody without formal arrest, and resulting confessions); Moreland, Modern Criminal Procedure (1959), Ch. 4; and Warner, The Uniform Arrest Act, 28 Va. R. Rev. 315, 317-324. The only offenses charged in the indictments before us are assaults and batteries.

There are no charges of burglary or of attempted burglary, or of any violation of the “rogue and vagabond” statute (Code (1957), Art. 27, Sec. 490); 1 and there is no finding that any such offense had actually been committed by the appellant or by anyone else. Nor does the State raise any contention that if the arrest were unlawful, the appellant would be nonetheless guilty of assault because of the use of excessive force to resist such an arrest. ³⁵ As the case is presented to us, there is no contention that the appellant was guilty of burglary, or even that the appellant was actually attempting to commit burglary, notwithstanding appearances leading the officers reasonably to believe that he was. The determinative question with regard to the lawfulness of the appellant’s arrest, in our view, is whether or not the officers’ reasonable grounds for believing that the appellant had been engaged, in their presence, in committing or in attempting to commit burglary just before they arrested him, would authorize them to arrest him without a warrant. If attempted burglary were itself a felony, the case would present no problem, for the arrest would be unquestionably proper.

Mulcahy v. State, supra, 221 Md. at 421 , and cases there cited; Kauffman, op. cit. supra, p. 159. Nor would there be any problem with regard to the lawfulness of the arrest if the appellant had been tried and convicted for the crime of an attempt to commit burglary (such an attempt constituting a misdemeanor 2 ), since a peace officer may make an arrest without a warrant for a misdemeanor which has been or is being committed in his presence or view, if he reasonably believes the person arrested to have committed it. See, inter alia: Mitchell v. Lemon, 34 Md. 176 ; Roddy v. Finnegan, 43 Md. 490 ; Heyward v. State, 161 Md. 685 , 158 A. 897 ; Blager v. State, 162 Md. 664 , 161 A. 1 ; Callahan v. State, 163 Md. 298 , 162 A. 856 ; Romans v. State, 178 Md. 588 , 16 A. 2d 642 , cert. den. 312 U. S. 695 ; Bass v. State, 182 Md. 496 , 35 A. 2d 155 ; Kershaw v. State, 199 Md. 135 , 85 A. 2d 783 ; Griffin v. State, 200 Md. 569 , 92 A. 2d 743 , cert, den. 345 U. S. 907 ; Brown v. State, 207 Md. 282 , 113 A. 2d ³⁶ 916; Davids v. State, 208 Md. 377, 118 A. 2d 636 (rule stated, not found applicable) ; and Kauffman, op. cit. supra, rule 6, pp. 160-161. In typical cases, such as those just cited, where the general rule has been stated as above and the arrest has been upheld, only misdemeanors have been involved.

This has also been the situation in other cases which have come to our attention where the rule has been recognized, but the arrest has been held improper. See, for example: Sugarman v. State, 173 Md. 52 , 195 A. 324 ; Turner v. State, 195 Md. 288 , 73 A. 2d 472 ; Walker v. State, 195 Md. 412 , 73 A. 2d 508 ; and De Angelo v. State, 199 Md. 48 , 85 A. 2d 468 . See also Williams v. State, 204 Md. 55, 64 , 102 A. 2d 714 . Such is not the situation here.

The activity in which the officers reasonably believed the appellant to have been