State v. Robinson

Hammond, C. J., delivered the opinion of the Court. We granted the petition of the Attorney General of Maryland asking us to review the decision of the Court of Special Appeals in order to determine whether that Court, in reversing convictions for armed robbery of Ronald Andre Jackson and James Edward Robinson in the Criminal Court of Baltimore, had erred in applying the rule of Miller v. State, 231 Md. 215 , and Cooper v. State, 231 Md. 248 , that evidence that an accused in police custody had remained silent in the face of an accusation of his guilt by another is inadmissible against him. We conclude that the Court of Special Appeals did err and will reverse its judgment and affirm the judgments of the Criminal Court of Baltimore. The State’s evidence included testimony that on March 21, 1970 in Baltimore Robinson was driving a black sedan with Jackson on the passenger’s side of the front seat.

They picked up Lewis Barber and his friend Conyers, who wished to be transported to an intersection some blocks away. Robinson did not stop at the intersection but drove into Druid Hill Park where he stopped the car and pointed a gun at Barber and obtained from him money, whiskey and a watch. (Barber says he gave the loot to Jackson at Robinson’s direction.) Robinson handed the gun to Jackson and told him to hold it on Barber and Conyers, and then started to drive on. After they had gone a short distance, Robinson noticed a police car behind them and told Jackson to throw the gun out of the window and Jackson did so.

About fifty yards from where Jackson threw the gun, Robinson stopped the car. Officer Maher testified for the prosecution that then he ³³⁵ and his police partner, Pereny, “approached Mr. Robinson’s vehicle and, at this time, Mr. Barber jumped out of the left-rear seat and stated ‘they just robbed me— watch it, they have a gun.’ At this point we ordered everybody out of the car, and while my partner patted them down for weapons, I, then, searched the vehicle for further weapons. Mr. Barber stated that [Jackson] threw the gun out of the window.” At this point there was an objection to the last sentence. Judge O’Donnell overruled the objection, holding that the statement was part of the res gestae (the gun was found and identified as that held by Robinson).

Officer Pereny next testified. He said without objection that he and Officer Maher approached the Robinson car, Maher going to the driver’s side and he to the other side, and that “we opened the doors of the vehicle, and the subjects on my side of the car remained in the car, and the ones on Officer Maher’s side began to get out. Mr. Barber had gotten out of the back seat. I could just barely hear him say to my partner that ‘we have been robbed’ and something to the effect ‘they have a gun’ * * * on the right hand side of the driver’s seat was the defendant, Mr. Jackson * * Barber, who was the first witness for the State, testified that all four men got out of the car and put their hands up in response to a command from the police and immediately he told the police that “they” had just robbed him and that they had thrown a gun out of the car.

Judge O’Donnell admitted his statement over objection as part of the res gestae. When Jackson testified, he said on direct examination that the pistol was his and he threw it out of the window of the car because he was on parole. He said, too, that Barber did not tell the police he had been robbed until everyone was out of the car but “no, he had told them as soon as the police pulled up.” On cross-examination he was asked: “What did you first say to the police when they pulled you over?” He answered: “I ain’t say nothing because they stopped him [Robinson], it was his ³³⁶ car.” He next was asked: “And you said nothing at that point?” and his answer was “no, sir, I didn’t say nothing at all.” There was no objection to either question and no motion to strike either answer. When the State’s Attorney asked the question a third time, there was an objection.

The State’s Attorney explained to Judge O’Donnell at his request: “The question is, at the point where the police stopped the car, did Mr. Jackson say anything or volunteer any information?” Again there was an objection. Judge O’Donnell said: “I will overrule it, as to whether or not he said anything or volunteered any information. If it goes to the issue, did he say anything in response to interrogation, I would sustain the objection.” Then, the State’s Attorney asked Jackson: “Did you spontaneously say anything, Mr. * * to which there was an objection which was overruled, and the answer was: “No, I didn’t say