Watson v. State

Anderson, J., delivered the opinion of the Court. The appellant, Ernest Watson, was convicted in the Criminal Court of Baltimore of robbery with a dangerous and deadly weapon by Judge Paul T. Pitcher, sitting without a jury, and was sentenced to fifteen years under the jurisdiction of the Department of Correction. On this appeal, appellant presents the following questions: I—Whether appellant’s arrest was legal ? II—Whether appellant was denied his rights when he was denied counsel at the preliminary hearing ? ¹³⁶ III— Whether Mrs. Schneider should have been allowed to testify ?

IV- —Whether the identification of appellant was sufficient and proper ? V—Whether the testimony of the child witness was competent and worthy of belief ? VI—Whether the evidence was sufficient to sustain the conviction ? The testimony at trial was relatively simple.

Mrs. Faye Schneider testified that on December 13, 1967 at 9:30 p.m. she was operating a liquor and grocery store in Baltimore. She heard a noise and then saw a man holding a gun. The man demanded all of her money and although she was momentarily “dumbfounded,” she gave the man $150.00 from the cash register. The man was in the store for approximately 4 to 5 minutes and the lighting in the store was good.

She described the man to the police as wearing a long black leather coat and a peaked cap. Mrs. Schneider testified that although she had viewed photographs which were shown to her, she was unable to “recognize anybody”; and that although she was present at the preliminary hearing she was not called upon to identify the robber. At trial she positively identified appellant as the man who robbed her and affirmed that without a shadow of a doubt appellant was the robber. Ronnie Thompson, age 14, testified that he was in Mrs. Schneider’s store and that a man produced a gun and said, “Don’t anybody move; this is a hold-up.” The man then went behind the counter and was given the money by Mrs. Schneider.

Ronnie Thompson testified that the robber was a dark skinned Negro wearing a dark colored three quarter length jacket and a brown checked cap. He stated that he was approximately one foot away from the robber for 2 to 3 minutes, that the store was brightly lit, and that he was “scared” while the holdup was in progress. At trial he pointed out appellant as being the robber and positively identified him, affirming that there was not the slightest amount of doubt in his mind that appellant was the man who had robbed the store. The appellant declined to testify, and defense counsel then ¹³⁷ proffered to the court that his only witness was one “Clinton,” whose company appellant alleged he was in on the evening in question, and who could not be located to testify.

I The record is devoid of any testimony relating to the circumstances surrounding appellant’s arrest. Counsel for appellant has conceded what is evident, that the issue of probable cause for appellant’s arrest was not raised at trial. Because of this circumstance the contention is not reviewable on this appeal. Maryland Rule 1085.

We note, however, that the record shows that no fruits of the arrest were received into evidence against him, and even if the arrest were illegal, that does not, in and of itself, preclude a trial or vitiate a conviction. Boone v. State, 3 Md. App. 11, 30 , 237 A. 2d 787 (1967) ; Hartley v. State, 4 Md. App. 450, 459, 243 A. 2d 665 (1968). II—PRELIMINARY HEARING The record shows that this contention was not presented to or decided by the court below and there is, consequently, nothing for us to review. Maryland Rule 1085.

Aforeover, there is no constitutional right to counsel at the time of a person’s arrest or at a preliminary hearing where no plea, is taken or the plea is not guilty. There is nothing in the record before us to indicate otherwise. Timbers v. State, 2 Md. App. 672, 673, 236 A. 2d 756 (1968) ; State v. Hardy, 2 Md. App. 150, 233 A. 2d 365 (1967); Hartley v. State, supra. Ill—MRS.

SCHNEIDER’S TESTIMONY Appellant contends that the prosecuting witness, Faye Schneider, should not have been allowed to testify in view of the fact that she was not named on the face of the indictment.