White v. State

Lowe, J., delivered the opinion of the Court. After presiding over the convictions of William H. White following a jury trial in the Criminal Court of Baltimore, Judge Paul A. Dorf sentenced appellant White to a total of one hundred and fifty-five years to be served consecutive to a life sentence. The crimes for which Mr. White was convicted were first degree murder, assault with intent to murder, four counts of robbery with a deadly weapon and four handgun violations. The convictions arose out of a single incident when appellant and three other persons robbed the Chevrolet Inn and its patrons.

One patron was killed and another wounded. The appellant was first tried from May 2, 1973 to May 10, 1973 jointly with a co-defendant who was convicted by a jury. The jury could arrive at no decision as to appellant and the case against him was declared a mistrial. This appeal reviews the retrial commenced on Nov. 8, 1973.

Several of the fourteen issues raised by appellant result from the interrelation of the two trials. Unresolved Motion Appellant contends that prejudicial error was committed by the failure of the court below to rule on the speedy trial issue he raised prior to retrial. Among a multitude of issues contained in a single Motion to Dismiss the Indictments, ¹⁵⁴ appellant asserted (in subparagraph c of paragraph 10) that his “constitutional and fundamental rights” had been violated by his having “been denied a speedy trial.” The overall Motion to Dismiss was heard by Judge Anselm Sodaro. During the hearing Judge Sodaro asked, “Mr. Maddox, may I ask whether there has been filed in these proceedings a motion for a speedy trial, or is that motion for a speedy trial included in this motion to dismiss the indictments? ” Neither appellant nor his counsel was able to recall whether such motion had been filed since the first trial or if so in' what form.

Judge Sodaro then explained: “THE COURT: The reason I am inquiring is if there has been a motion for speedy trial filed there will have to be an ajudication [sic] on that motion, the determination of the motion can be decided and then the case can go on to trial, or it can be held sub curia until after the determination of thé trial, all of which is subject to appeal in the event of a guilty verdict. It seems to me inasmuch as I am not going to hear this case, but Judge Watts ' will on November the 7th, that the motion for a speedy trial ought to be argued and determined by the judge presiding at the trial of the case, and if there is to be a motion for a speedy trial, I think it ought to be filed on a separate document and not be included in the motion to. dismiss these indictments, because various grounds have been assigned for the dismissal of these indictments, one of which is-this defendant has not been afforded a speedy trial, and it seems to me that I should not make -any ajudication [sic] of that issue in these proceedings but I would have to leave it to Judge Watts at the time of the trial of the case. “I would also suggest it would be a better practice and make a more orderly procedure, if the ¹⁵⁵ defendant still insists on claiminghe [sic] has been denied his right to a speedy trial, that he ought to file that motion, that speedy trial motion in a separate document so there can be an ajudication [sic] of that motion. If this defendant is then acquitted all well and good; if this defendant is found guilty I think the record ought to be made complete that some one judge, either I or Judge Watts, had made a determination of the motion for speedy trial. Do we understand each other now? “MR.

MADDOX: Yes.” When the case was called for trial the judge presiding was not Judge Watts as anticipated but rather the Honorable Paul A. Dorf. Judge Dorf promptly asked the parties: “What are the motions before me if any at this time? ” Although appellant raised several preliminary questions to be decided by Judge Dorf, at no time did appellant mention the undecided subparagraph 10 c of the Motion to Dismiss, disposed of in all other respects by Judge Sodaro. Time and again during the disposition of preliminary matters prior to selecting a jury Judge Dorf would inquire “What motions are you pressing now” or some similar invitation to bring to his attention any matter pending that should be disposed of prior to trial. Finally, immediately before concluding the preliminary hearing Judge Dorf once more asked: “Gentlemen are there any other foreseeable problems we can solve at this time before we go to trial? ” The appellant brought out “The only other thing . . .” which he asked to be decided and which had no relation to the speedy trial complaint.

Proceedings were then concluded and the case continued until the following day when witnesses could be obtained to dispose of a motion to suppress an in-court identification prior to selecting a jury. Although appellant cites no authority for his contention ¹⁵⁶ that failure to rule upon a pending motion may be prejudicial error we have no question that such right is an important element of Maryland law. Brice v. State, 254 Md. 655 . We note, however, that this right, as most other rights, carries with it a commensurate responsibility.

The motion to be decided must be brought to the attention of the trial court. Appellant may not take advantage of an obscurely situate, undecided motion and stand mute in the face of repeated requests by the judge for all pending motions to be decided. This becomes inexcusable in light of the former hearing judge having specifically admonished appellant to place the question squarely before the judge who would try the case. In both Alston v. State, 11 Md. App. 624 and Saunders v. State, 8 Md. App. 143 , while acknowledging the trial court’s responsibility to rule on all pending motions, we have added, the qualification “... if they are brought to his attention prior to the conclusion of the trial.” Saunders v. State, supra, at 146; see also Frazier v. State, 3 Md. App. 470 .

If the question is not of such importance to appellant that he remembers to request an answer, the court cannot be charged with screening previously decided motions to discern an unanswered sentence obscured by a plethora of unrelated issues. Nor can we permit such distended motions to be set as a trap for an unwary judge. Appellant obviously waived his right to a ruling on the motion by repeatedly failing to present the question to Judge Dorf. Remarks Indicative of Prejudice When the new trial commenced, appellant subpoenaed his brother who was in custody, and received permission for him to sit in the courtroom during the trial.

Appellant complains of the trial judge’s inability to impartially preside which he infers from his remarks during an episode involving appellant and his brother. To place the remarks in context we review the factual setting revealed by the record. At the previous trial witnesses identifying appellant testified that he sported a mustache and a bush hair style. At the time of the second trial he had altered his appearance by removing the mustache and closely cropping his hair. ¹⁵⁷ During the hearing on the motion to suppress in-court identification, prior to the second trial, appellant wore a distinctive business suit with a floral design.

The State’s witness was asked to identify the perpetrator of the crime. She identified appellant who was wearing the suit. Appellant’s brother had grown a mustache and “bush” hair style while in custody prior to the second trial. He appeared in court dressed in prison denims and flanked by guards.

According to the trial judge the brother’s facial and physical appearance were quite similar to the accused. The judge refused to allow the brother (who, though subpoenaed, never testified) to be seated at the trial table next to the now clean shaven, closely cropped defendant (dressed as indicated in the eye-catching suit). No objection was raised to that refusal. During the trial, appellant changed his garb and his prisoner-brother donned the appellant’s floral suit.

The State’s identification witness had, of course, been sequestered since the suppression hearing to await her turn to testify and identify appellant in the presence of the jury. Thus, when she returned, she would have seen the look-alike brother seated in the courtroom in appellant’s floral suit. This brotherly exchange of appearance and dress was obviously intended to mislead the identifying witnesses, and the trial judge properly refused to permit the solemn process of identification to become a charade of look-alikes. Appellant does not protest the prohibition of the proposed practice either.

His complaint is that the remarks of the trial judge, although not in the presence of the jury, were so prejudicial as to indicate that he “could not assure the Appellant a fair and impartial trial.” We quote the record where it begins after an overnight recess: “THE COURT: I really don’t appreciate the fact that the defendant has changed suits in the middle of the trial. Now the person who is being put in the audience, his brother, is wearing the suit he wore at the trial yesterday. ¹⁵⁸ “MR. WASE: The State would enter an objection to it, Your Honor. “THE COURT: The State does not have to object. I object strenuously and I don’t know what is happening here.

I’m not talking to Mr. Maddox. It’s probably the first time you have seen it. “MR. MADDOX: The first time I have seen the change I’ll say. “THE COURT: It appears to the Court that there are things that are taking place in this case which are not exactly fair. I don’t really appreciate it.

I’m advising all parties, Mr. White, take off that jacket, just sit without a jacket today. Take the jacket back. I don’t care what you do with it. You’re not going to have the defendant wear the jacket one day and the brother wear the same jacket the next day.

With that type of jacket, white jacket with a floral arrangement, the minute the jacket walks in, I’m not a connoisseur of men’s clothing, but it stands out like a sore thumb. I was going to tell him you’re sitting in the wrong place. “MR. WASE: If your Honor please of course the man still has the pants on. “THE COURT: Well I can’t take his pants off.” In light of the circumstances we consider the judge’s remarks commendably restrained and anything but indicative of prejudice, unfairness or partiality. The granting or denial of a mistrial being discretionary, Johnson v. State, 18 Md. App. 571, 574-5 , there is no evidence whatsoever of an abuse of discretion.

To the contrary, we find appellant’s attempted deception repugnant to the truth-finding process and deserving of the reproval it received. In addition, we reiterate that the reproval occurred when the jury was not present. Defendant’s Prior Testimony Prior to concluding the State’s case the assistant state’s attorney offered a transcript of the appellant’s testimony ¹⁵⁹ given at the first trial. Appellant’s objection asserted that admission of such testimony would violate his right not to incriminate himself guaranteed by the fifth amendment to the Constitution of the United States.

The court overruled the objection and permitted the testimony to be introduced. The testimony was essentially exculpatory. Appellant denied having been near the scene on the night in question or of having been acquainted with any of the known participants. The latter assertion had especial significance in the original trial since Abraham Goode, a co-defendant, was convicted although the jury was unable to agree as to White.

Appellant specifically disavowed knowing Goode prior to their respective arrests. Nothing more of substance was included in his testimony from the first trial. Had the issue concluded there, the question would give us but little concern. In Harrison v. United States, 392 U. S. 219, 222 , the Supreme Court settled the question of a defendant’s alleged compulsory self-incrimination through introduction of his testimony at a former trial: “In this case we need not and do not question the general evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings.

A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.” 1 ¹⁶⁰ Impeachment of Defendant’s Testimony From Prior Trial However, the State then followed the introduction of appellant’s testimony from the prior trial with witnesses who testified to facts contradicting portions of the exculpatory testimony. These witnesses included Mrs. Phyllis Wiggins, a school teacher and cum laude college graduate, who lived with an associate of White. She placed White in the company of the co-defendant whom he had denied knowing. John Bernard Morris was then called by the State to testify behind a shield of sweeping immunity from prosecution for an unrelated crime, as well as “if during the course of that testimony any of the statements he makes incriminates him in any other offense, he will not be prosecuted by the State.” After testifying that his occupation “until recently . . . was a stick up artist” and that he generally “dealt in criminal activity,” Morris’ direct testimony did little more than contradict appellant’s testimony from the previous trial, particularly regarding persons he denied knowing.

Additionally, Morris described appellant’s physical appearance during the