Tillery v. State

Okth, J., delivered the opinion of the Court. Harry Tillery, Jr. was convicted at a bench trial in the Criminal Court of Baltimore of assaulting Joseph Kaczynski (indictment 2600), assaulting Michael Cuffley (indictment 2601), resisting arrest (indictment 2602), and being a rogue and vagabond (2nd count, indictment 2603). Concurrent sentences of 3 years, 3 years and 1 year respectively were imposed on the first three convictions. But for being a rogue and vagabond he was given a 2 year sentence to run consecutive thereto.

He is aggrieved only by being declared a rogue and vagabond, claiming that the evidence was not sufficient to sustain that conviction. We think he is right. We hold that the lower court was clearly erroneous in its judgment on the evidence as to the conviction under indictment 2603. Maryland Rule 1086; Williams v. State, 5 Md. App. 450 .

When the indictments came on for trial appellant pleaded not guilty and defense counsel informed the court that “we have agreed to proceed on a statement of facts. * * * We are agreeing on a statement of facts and the facts as they exist. The Defendant and I are willing to have the State recite what the testimony will be, but the Defendant reserves the right to take the stand and dispute those facts.” The Assistant State’s Attorney recited the facts: “If Officer Joseph Kaczynski were called to the stand, he would testify he is assigned to the Eastern District and on February 3, 1970, approximately 4:37 p.m., he received a call to 1508 Ashland Avenue, at that address is the Club Morrocco, for a disorderly man with a knife. Upon Officer Kaczynski’s arrival he spotted the ⁶²⁶ Defendant in this case, Mr. Tillery. Mr. Tillery was pointed out to Officer Kaczynski as the man with the knife.

Mr. Tillery ran out the front door of the club where Officer Kaczynski then stopped him and asked for identification, at which time Mr. Tillery tried to swing at Officer Kaczynski and then was placed under arrest by the Officer. While trying to handcuff the Defendant, Mr. Tillery, he began to kick Officer Kaczynski and another Officer came to Officer Kaczynski’s assistance, this Officer being one Officer Gaines. Both Officers then attempted to subdue Mr. Tillery and at this time he continued to swing at both Officers with his fist, at which time a third Officer, Officer Cuffley, arrived at the scene and attempted to seize the suspect. At this point, Mr. Tillery tore the badge of Officer Cuffley’s uniform and clenched it in his right hand with the pin from the badge in an outward position, swinging at various times in a violent manner at each of the three Officers.

At this time Officer Kaczynski struck the suspect on his right hand with his night stick, causing him to drop the badge to the ground. He continued to fight, was maced several times by Officer Gaines. He was finally subdued. All three Officers handcuffed him, placed him in leg irons and transported him to Eastern District.

Upon searching the Defendant after successfully effecting the arrest, they recovered from him the pocketknife and at the time of the recovery of the knife, the blade was open, and the State would offer as State’s Exhibit 1, this knife, which would be identified by Officer Kaczynski in court as being the knife that was removed from the Defendant Tillery at the time of his arrest. (The above referred to knife was admitted into evidence and marked as State’s Exhibit 1.) ⁶²⁷ * * * Following this, an additional charge of possession of a deadly weapon was lodged against Mr. Tillery by the police department in addition to disorderly conduct, assault and resisting arrest. The State would also call as