Appeal No. 504 September Term, 1974 from Circuit Court of Baltimore City Sitting as a Juvenile Court, In re

• Decision Date: 01 September 1974
• Parties: In re APPEAL NO. 504
• Court: Court of Special Appeals of Maryland

Page 715

24 Md.App. 715

332 A.2d 698

In re APPEAL NO. 504 SEPTEMBER TERM, 1974 FROM the CIRCUIT

COURT OF BALTIMORE, CITY SITTING AS A JUVENILE COURT.

No. 504.

Court of Special Appeals of Maryland.

Feb. 21, 1975.

Solomon Reddick and Geraldine Kenney Sweeney, Asst. Public Defenders, Baltimore, with whom was Alan H. Murrell, Public Defender, Baltimore, on the brief, for appellant.

Bernard A. Raum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., for Baltimore City and Clarence Long, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before ORTH, C. J., and POWERS and MOORE, JJ.

ORTH, Chief Judge.

On 8 February 1974 the State's Attorney for Baltimore City filed petition No. 012274 in the Circuit Court of Baltimore City, Division for Juvenile Causes (Juveniel Court), averring that a male child, born 16 October 1959 (appellant) ¹ was delinquent. The reason given for the averment was that on 26 December 1973, about 2:35 p. m., appellant, in the company of two other persons, 'unlawfully did steal, take and carry away the goods, chattels, money and/or property of Veronica Feuka, to wit: one purse and contents, valued at $23.50.' At a hearing before a Master on 11 April 1974 appellant was found to be delinquent. Maryland Rule 908e 1; Matter of Brown, 13 Md.App. 625, 284 A.2d 441. Exceptions to the Master's findings were timely filed. Rule 908 e 2. See Matter of Anderson, 20 Md.App. 31, 315 A.2d 540, affirmed 272 Md. 85, 321 A.2d 516. On 2 May the matter was heard de novo by the Juvenile Court. Rule 908 e 3. Appellant was found to be a delinquent child. On 4 June, by order of the court, he was placed on probation under supervision of a Probation Officer. ² On the same date the court issued an order that appellant's mother make restitution to the victim in the amount $22.50. Courts Art. § 3-839. An appeal was timely noted 'from the judgment and order.' Courts Art. § 12-301 and § 12-308(a)(1).

The issue presented for decision on appeal is whether the evidence was sufficient to sustain the finding that appellant was a delinquent child.

Appellant was a child in the contemplation of the juvenile laws of this State because he was a person under the age of 18 years and subject to the jurisdiction of a juvenile court. Courts Art. § 3-801(e). ³ He would be a 'delinquent child' if he committed a 'delinquent act', and required supervision, treatment, or rehabilitation. Courts Art. § 3-801(k). A 'delinquent act' includes an act which would be a crime if done by a person who is not a child. Courts Art. § 3-801(j). As the reason given in the petition for the allegation that appellant was delinquent was that he committed the crime of petit larceny, he would properly be found to be a delinquent child if the evidence adduced at the adjudicatory hearing ⁴ was legally sufficient to establish the corpus delicti of that offense and his criminal agency and that he required supervision, treatment, or rehabilitation. To be legally sufficient, that evidence must prove the allegation in the petition beyond a reasonable doubt. Courts Art. § 3-830(a); ⁵ Woods v. Department of Social Services, 11 Md.App. 10, 272 A.2d 92.

The victim of the crime, Veronica Feuka, testified that she left her home at 339 E. 31st Street in Baltimore City on 26 December 1973 about 2:15 in the afternoon to go to the grocery store. She saw a 'bunch of boys.' Three were in front of her house, and two were across the street. She made a judicial identification of appellant as one of the boys, but she could not say whether he was one of the three in front of her house or one of the two across the street. She was walking down Barclay Street towards Old York Road when her purse was stolen-'they just took it . . .. I was carrying it on my left arm . . . it had a zipper with a chain. . . . I had it around my small finger. . . . I was holding it on the . . . shopping cart . . . and all of a sudden they took it.' She did not know how many persons were involved in the incident. She did not get a look at the one who actually took it. There was $15 and $2.50 worth of food stamps in the purse, and the purse itself was worth about $5. When she turned around 'they were all running south up Barclay.' She saw only three of them running. She attempted to describe how they were dressed. 'Well, what I can remember was, one had a red shirt, blue pants and the other one had blue pants with a knitted brown hat and green hat. That's all I could remember.' Upon inquiry, it was elicited that one had on a brown hat and another had on a green hat. She did not know how the third boy was dressed. She was cross-examined about her identification of appellant. The transcript of the trial reads:

(by Solomon Reddick, defense attorney)

'Q. You don't know whether this boy was one of the boys who you saw or not, do you?

A. I really couldn't tell you that, because I didn't have that much good look at the boys.

Q. But, I say, you don't know whether he was one or not, do you?

A. He's about the size. That's about all I can tell you.

Q. But, you don't know if you can identify him today? Can you?

A. No.'

It was clear, and the court so observed, that she did not know whether the five boys she saw when she first left her house were involved in the incident. She could not say whether any of the three boys who ran after snatching her purse was among those she had seen standing by her house or across the street.

Roberta Feuka, the mother of the victim, was looking out the window when her daughter left the house. She saw the three boys standing under the window, and two smallar ones across the street. She opened the window to throw her daughter a rain hat. She saw the two smaller boys standing across the street start after her daughter and one of them went 'right after her and grabbed the purse, and the two of them ran (west on 31st Street) and the other three from that corner, ran the other way.' She identified appellant as one of the three boys standing under her window. He was not one of the two smaller boys standing across the street.

Detective John Buettner, Criminal Investigation Division, Baltimore City Police Department, was dressed in plain clothes and cruising in an unmarked police vehicle on 26 December 1973. About 2:30 p. m. he was in the area of Barclay and 31st Streets and received a radio broadcast that there had been a 'purse-snatch' in the 3100 block of Barclay Street. He responded to the call and when he arrived he met another police officer and the victim. He asked Ms. Feuka for a description of the participants. She told him there were 'four or five colored males . . . 14-15 years of age.' 'She said they all had knit hats on, said one was brown, one was green. She said one boy had a real red-I think she said tangerine red shirt on, and blue pants. The other one had blue pants but she couldn't give anything else.' Buettner drove toward Greenmount Avenue. When he reached the 400 block of East Lorraine Avenue he saw appellant running across Lorraine Avenue. Buettner stopped him. ,' at this time he was pretty windy, and sweaty, and I had asked him what-where he was coming from. . . . He said he had just left the house up the street. So, I asked him, where was this house, and he said, 'Up in the next block,' which would be the 300 block of East Lorraine, and based on the fact of his being winded and sweaty, and the fact that he was wearing a pair of blue trousers and a brown-and I believe his was a green knit cap.' The officer 'placed (appellant) in the police vehicle,' explained there had been a purse-snatch in the 3100 block of Barclay Street, and told him he was going to take him to the scene and 'see if anyone would identify him.' Buettner took appellant to the scene of the crime. The officer asked the victim if she recognized the youth and '(s)he said the same hat and same pants, but I can't be sure.' Roberta Feuka ran up, and 'Just as she got to the car, she pointed her hand out-into the car, and stated, 'That's one of them that grabbed my daughter's purse' . . ..' On cross-examination Buettner said appellant was under arrest when he was placed in the car. 'However, if he had not been identified I would have taken him home. He would have been released.'

The State rested and the defense moved for judgment of acquittal. The motion was denied after argument. Appellant was fully advised by his counsel of his right to remain silent. Appellant elected not to testify. The defense offered no evidence. The motion for judgment of acquittal was renewed and again denied. ⁶ On the merits, the defense submitted on the argument presented on the motion. The State argued. The court found appellant to be a delinquent child '. . . for the reasons stated in this petition, which means in effect that I am finding you guilty of this charge against you.' The court made a statement of the grounds on which it based its determination, Rule 912 d 1:

'It, in a sense, was a close question. I believe beyond reasonable doubt that you are guilty, but in getting to the point of being beyond a reasonable doubt, it wasn't by a overwhelming margin, but it was in my mind enough a margin to make me morally certain that you were the one.

It is very true that the law says that merely because a person may be present at the scene of a crime, that is not enough to prove that that person participated in that crime. I am satisified from the testimony in the record, which is only the State's witnesses, that you were there. That you were one of the three boys standing outside the house of Ms. Feuka. Ms. Feuka-Mrs. Veronica Feuka was not able to identify you with sufficient certainty, at all. If I had to rely on her testimony, I could not place you there, but her mother's testimony was completely positive in that area, as well as the testimony of Detective Buettner, which cited the identification of you in a spontaneous way at the scene by the elder Ms....