Alston v. State
| Decision Date | 23 April 1971 |
| Docket Number | No. 161,161 |
| Citation | 11 Md.App. 624,276 A.2d 225 |
| Parties | Billy Cardell ALSTON v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Henry F. Leonnia, Upper Marlboro, for appellant.
Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and Vincent J. Femia, Asst. State's Atty., for Prince George's County on brief, for appellee.
Argued before MURPHY, C. J., and ANDERSON and MORTON, JJ.
Billy Cardell Alston, appellant, was found guilty of 1) robbery with a deadly weapon, and 2) carrying a dangerous weapon openly with intent to injure in a jury trial in the Circuit Court of Prince George's County, Judge Roscoe H. Parker presiding. Alston was sentenced to the jurisdiction of the Department of Correction for twenty years on the armed robbery charged and two years, to run concurrently, on the charge of carrying a dangerous weapon with intent to injure.
Appellant raises the following contentions in his appeal:
1) The trial court erred in failing to rule on the excepted portions of appellant's motion for discovery and inspection.
2) The trial court erred in failing to effectively consider the appellant's motion for an in-court lineup.
3) The conviction for the lesser offense of carrying a dangerous weapon merges with the more serious conviction under the charge of robbery with a deadly weapon.
Prior to trial, after entering a not guilty plea and electing a jury trial, appellant filed a motion for discovery and inspection. Information requested included the following:
1) Permission for the defendant to inspect and copy all papers, documents, etc., belonging to or obtained from defendant.
2) Requiring certain State officials to furnish defendant the substance of any oral statements or copies of any written statements made by defendant.
3) Requiring certain State officials to furnish defendant with a list of prospective State witnesses.
4) Requiring State's Attorney to furnish defendant with all details of the alleged offense, including law enforcement agency reports and the substance of testimony relating to physical evidence.
5) A copy of the FBI report or statement concerning prior offenses by defendant.
6) Substance of the State's witnesses' prospective testimony.
7) Names and addresses of persons interviewed by police in conjunction with alleged offense.
8) Copies of any and all reports by police or investigative authorities that participated in the investigation and preparation of the case for trial.
The State filed its answer to this motion on the following day, responding to the first three requests of the motion in compliance with Maryland Rule 728 but excepting to 'any and all other requests for discovery and inspection.' Appellant admits that the other requests are subject to discretionary enforcement by the trial judge, but argues, however, that the State was duty bound to supply details of the alleged offense favorable to him under the Supreme Court ruling in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). According to appellant, the trial court's failure to rule on his motion was reversible error in light of Brady.
Appellee argues that question for decision on appeal has been waived since (1) appellant failed to request a hearing on his motion pursuant to Maryland Rule 1210 c., 2) to take exception to any portion of the State's answer, 3) request the court in any way to require further answers to be given by the State, or 4) to object to any evidence at trial allegedly not disclosed in the State's answer.
Appellant counters that the State's failure to respond to his discovery motion with the information required by Brady, supra, was an abridgement of Alston's due process rights. Such constitutional rights, the appellant reminds us, cannot be presumed waived from a silent record. Since we are presented with a silent record in this case, argues the appellant, it follows that an apparent failure to raise the discovery motion issue below does not preclude review of the question in this Court.
We do not find it necessary to view the issue before us as a question of whether or not a constitutional right was waived below or preserved in a silent record, absent an intentional relinquishment or abandonment of a known right or privilege. The core issue is simply whether the trial court's failure to rule on the allegedly insufficient answer by the State to appellant's discovery motion abridged a specific constitutional right. Under our interpretation of Brady, supra, and the circumstances of this case, we hold that the handling of appellant's discovery motion did not violate due process.
Brady requires that evidence favorable to a defendant sought via a discovery motion must be material either to the guilt or the punishment of the accused. 373 U.S. at 87, 83 S.Ct. 1194. We stated in Ward v. State, 2 Md.App. 687, 236 A.2d 740, that the burden is on the accused to show that the information he seeks may be material to the preparation of his defense or that the State actually suppressed evidence favorable to him.
Appellant fails to make such a showing in the instant case. The State acted voluntarily without awaiting a court order to answer appellant's motion. The trial court had the discretionary power to adjudge, if requested, whether or not any additional information sought by appellant was material and should have been disclosed by the State. State v. Giles, 239 Md. 458, 212 A.2d 101. At no time did the appellant request the court to order disclosure or a hearing on the issue of materiality. In the absence of a request of this kind by an accused, a trial judge is not compelled to order further production of discovery evidence. McKenzie v. State, 236 Md. 597, 204 A.2d 678; Barton v. State, 2 Md.App. 52, 233 A.2d 330. In the absence of any post discovery motions for a continuance or postponement by appellant, objections to the admissibility of State's evidence during trial based on the limits of discovery, or even specific examples in his appeal, we cannot imply the existence of repressed evidence which is both material and favorable to appellant.
Failure of the trial judge to rule on the ...
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