Williams v. State

Murphy, C. J., delivered the opinion of the Court. Appellants, John Wesley Williams and Solomon Jones, were convicted of armed robbery by the court sitting without a jury on November 9, 1966, and each was sentenced to a term of ten years imprisonment in the Maryland Penitentiary. The questions presented on this appeal relate to (a) the propriety of the court’s action in quashing the appellants’ subpoena duces tecum, (b) the legality of their arrest and the admissibility of evidence seized incident thereto, and (c) the sufficiency of the evidence to support the convictions. There was evidence adduced at the trial which showed that at 10:15 p.m. on August 27, 1966, three Negro men held up a liquor store in Baltimore City at gun point; that in the course of the robbery, the co-proprietor, Eli Small, was pistol whipped about the head by one of the robbers; that Small and a store clerk, John Wilson, were thereafter shoved into a back room of the store; that the robbers then took about $800 in cash, a camera, a knife, and several bottles of whiskey, fired three shots and fled from the premises; that Wilson promptly phoned the police, reporting the robbery, and Officer Edmund Fry re ¹¹⁸ sponded to the call, and immediately elicited from Small a general physical description of the three robbers; that while Fry was on his way back to his patrol car to make a radio report of the robbers’ descriptions, a bystander in the crowd which had assembled at the scene of the crime told the officer that he saw the men run out of the store and flee in a red and white Pontiac Catalina automobile and he pointed out the direction in which they fled; and that Fry then reported the information received from Small and from the bystander over his police radio.

Officer Francis Frederick, in his cruising car, heard the radio report of the robbery at about 10:20 p.m. He was about three miles from the scene of the crime when, at 10:35 p.m., he observed a late model red and white Pontiac Catalina containing four colored males. Since this vehicle fit the description of the get away car, Frederick followed it until it stopped at a curb, at which point Frederick drove his police car alongside the Pontiac. The Pontiac backed up quickly, with its wheels squealing, in an attempt to get into an alley.

Officer Frederick blocked the Pontiac with his vehicle, and he and his partner then arrested the four occupants of the Pontiac at gun point. Appellants were two of the men in the Pontiac, the others being Albert Offer and Ulise Mack. A search of the persons of the arrested individuals and of the Pontiac uncovered a number of incriminating articles. Prior to trial, appellant filed routine motions for discovery and inspection under Maryland Rule 728 seeking the names of State’s witnesses, the right to inspect objects obtained from or belonging to appellants, and the substance of any statements made by them to police.

They also filed motions to suppress evidence seized from them at the time of their arrest on the ground that the arrest was unlawful and the ensuing search and seizure likewise illegal. The appellants also filed a request for the issuance of a subpoena duces tecum to order the police to produce their records pertaining to appellants’ arrests, “and more particularly the exact records pertaining to the complaint made to the Police Department, the exact method in which said complaint was received by the Police Department, by whom received, giving name, title and department of such person, name of complainant, precise time said complaint was received by the ¹¹⁹ Police Department, precise time said complaint was conveyed to other police, manner of such conveyance, and exact contents and full details of any such message or conveyance.” While the State promptly provided the information sought by appellants in their motions for discovery and inspection, it did not seek to quash the subpoena duces tecum until the morning of the trial, at which time it made an oral motion to that end pursuant to Maryland Rule 115b 1 on the ground that it was “unreasonable and oppressive” in that it sought “all sorts of records of the police involved in the investigative procedure in this case;” and further that the data sought to be subpoenaed “is not properly subject to subpoena duces tecum, but rather is the subject of discovery under Rule 728.” The court granted the State’s motion to quash after an unreported bench conference was held, but it gave no reasons for its conclusion. It does not appear from the record that appellants at any time prior to the court’s ruling on the State’s oral motion to quash advised the court that all they really wanted, as they now concede, was to listen to the tape of the police radio calls upon which the State’s case of prohable cause to arrest was predicated. As the trial progressed, however, it became evident that the informa ¹²⁰ tion sought by the subpoena was, in reality, so limited and, at the conclusion of the State’s case, the appellants specifically requested, for the first time, so far as the record shows, that they be permitted access to the tape.

They then acknowledged that the tape could only be played on the playback machine in the communications division at police headquarters, and they requested that the court listen to the tape prior to ruling on their motion to suppress the evidence. At this juncture of the trial, the State’s testimony on the issue of probable cause had been completed, and its witnesses cross-examined; and while the court stated that ordinarily it would agree that it would be proper for the appellants to know what the tape contained, it declined at that time to go to the police station to hear the tape and held, primarily on the basis of the testimony of Officers Fry and Frederick, that there was probable cause to arrest. Appellants’ motions to suppress were, therefore, denied. Appellants contend that the trial court erred in quashing the subpoena since there was no showing made out that it was “unreasonable or oppressive” under Maryland Rule 115b.

They contend that the important question relating to probable cause to arrest does not concern itself with who gave the officers the description of the robbers and of the get away car, but whether such descriptions were given to the officers at all, and, if so, whether they were included in the police radio broadcast of the crime. The State on the other hand contends that the subpoena improperly sought “the investigative work product” of the police department, and that such product is neither discoverable, nor may it be subpoenaed; and that in Whittle v. Munshower, 221 Md. 258 , it was held that police records are not public records, nor are they open to inspection and that, absent a statute, they are “confidential.” The State further contends that appellants had ample opportunity to cross-examine the State’s witnesses who testified on the issue of probable cause, and that under these circumstances, it was not an abuse of discretion for the court to quash the subpoena. The request for the issuance of the subpoena was not dated, but it appears from the record that the subpoena was issued at least four days prior to the trial date. The record indicates that