Baker v. State

• Decision Date: 27 February 1968
• Docket Number: No. 119,119
• Citation: 238 A.2d 561,3 Md.App. 251
• Parties: Ballard Roger BAKER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 251

3 Md.App. 251

238 A.2d 561

Ballard Roger BAKER v. STATE of Maryland.

No. 119.

Court of Special Appeals of Maryland.

Feb. 27, 1968.

Richard K. Jacobsen, Baltimore, Anthony J. Sacco, Towson, on the brief, for appellant.

William B. Whiteford, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Baltimore, Arthur A. Marshall, Jr. and Robert J. Woods, State's Atty., and Asst. State's Atty. for Prince George's County, Respectively, Upper Marlboro, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

MURPHY, Chief Judge.

The appellant was convicted of burglary by a jury in the Circuit Court for Prince George's County on March 17, 1967, and sentenced to twenty years in the Maryland Penitentiary. Immediately following the imposition of this sentence, appellant pleaded guilty to a charge of grand larceny under another indictment, and was sentenced to fifteen years in the Maryland Penitentiary, to run concurrently with the prior sentence for burglary. On this appeal from both convictions, appellant contends, as to the burglary convictions (a) that the lower court erred in failing to propound certain questions to prospective jurors on voir dire, (b) that the police line-up was not fairly conducted, (c) that illegally seized evidence was admitted at trial, and (d) that the evidence was insufficient to support the conviction. He further contends, apparently as to both convictions, that the sentencing procedure constituted a denial of due process in that the trial judge relied on matters not in evidence and not proven at trial when imposing sentence.

The evidence adduced at the trial indicated that at about 2:00 a. m. on December 31, 1966, Mrs. Bida Williams, after hearing the door in her house open and close, discovered a man in the basement of her home. Mrs. Williams testified that the door through which the man had entered was unlocked but closed; that she observed him in the light at distances varying between four to twenty-five feet; that he was wearing a tan short waist Eisenhower jacket, light colored pants, and a red plaid hunting hat; that the man kept his back to her at all times and she did not see his face; that he told her in a 'hillbilly voice' that he was in the wrong house, and that he left the premises without taking anything and without further incident.

The evidence further showed that following Mrs. Williams' report of the crime to the police, Detective Joseph Vasco initiated an investigation, as a result of which he placed appellant under surveillance, over a six day period, thereafter arresting him without a warrant on January 13, 1967 in a wooded area in Bladensburg, Maryland.

Appellant was placed in a police line-up after his arrest and was identified by Mrs. Williams as the individual whom she had seen in her basement. She testified that her identification of the appellant was based on the clothing he was then wearing his stance, voice, height and weight. She identified appellant again at the trial.

Appellant requested the court at the outset of the trial to ask prospective jurors on voir dire whether they were related to any police officer and whether they knew either the State's or appellant's attorney. The court declined to propound these questions as phrased, but instead asked the jurors whether they knew either the appellant, Mrs. Williams, or Detective Vasco, and if any of them had been recent clients of either attorney. We see no error in the court's failure to propound the questions requested by appellant. The purpose of the voir dire examination is to ascertain the existence of cause for disqualification and for no other purpose. Giles v. State, 229 Md. 370, 183 A.2d 359. Neither mere acquaintance with an individual or group, nor mere relationship to witnesses, other than parties, is sufficient basis for challenging a prospective juror for cause. Goldstein v. State, 220 Md. 39, 150 A.2d 900. The question as to the connection of any juror with the attorneys did not have to be asked, Brown v. State, 220 Md. 29, 34, 150 A.2d 895, nor did the question as to the relationship of the jurors to any police officers, Borman v. State, 1 Md.App. 276, 278-279, 229 A.2d 440.

Appellant's contention that the police line-up was unfairly conducted is seemingly based on the fact that he was dressed in the same clothing, except for a different hat, that he was alleged to have worn when observed by Mrs. Williams in her home; and, further, that Mrs. Williams was told by Detective Vasco, prior to viewing the line-up, that he had been tracking 'this man' and that 'he assumed that he was the one that they were looking for.' While the circumstances under which the line-up was conducted leave much to be desired, we are satisfied from the record before us that Mrs. Williams' identification was predicated on her close observation of appellant's posture, stance, height and weight, and of his voice which she heard again at the line-up, and not alone or primarily on the basis of the clothing that he was wearing in the line-up. Mrs. Williams identified photographs of the line-up at the trial, and of appellant standing therein. These photographs were introduced into evidence without objection and, additionally, appellant made no objection to the testimony of Mrs. Williams relative to her identification of appellant at the line-up. We, therefore, hold that the line-up was not so conducted as to affront any of appellant's constitutional rights, and, furthermore, that since the question was not raised below, it is not properly before us on appeal. Maryland Rule 1085.

Appellant further contends that his arrest was illegal and that certain wearing apparel and a flashlight taken from him at the time of his arrest should not have been admitted into evidence at the trial. This contention, however, is not properly before us on appeal, and we decline to consider it, as there was no objection to the introduction of the evidence. To preserve an issue on appeal in regard to the admissibility of evidence, there must be an objection made to the question eliciting the allegedly objectionable answer, Culver v. State, 1 Md.App. 406, 230 A.2d 361. The rule is not different where evidence alleged to be illegally seized is involved, since Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, recognized that State procedural requirements to raise or preserve the question may still be respected. See Porter v. State, 230 Md. 535, 187 A.2d 870; Gaudio v. State, 1 Md.App. 455, 230 A.2d 700; Maryland Rule 1085.

Nor do we think that there is merit to appellant's contention that the evidence was insufficient to support the burglary conviction. The fact that Mrs. Williams never saw appellant's face goes to the weight of the evidence to be attached to her identification and was a question for the determination of jury. That she had ample opportunity to observe the appellant's height and weight, posture, stance, speech, and clothing, is clearly supported by evidence in the record. That there was legally sufficient evidence of a breaking and entering in the nighttime is likewise clear, and whether it was done with the intent to commit a felony was a matter for the jury's determination under the facts and circumstances of the case. We think there was sufficient evidence to go to the jury and, therefore, find no error in the court's denial of appellant's motion for acquittal made at the end of the entire case.

Appellant's final contention is that he was denied due process of law when the trial judge, after verdict, imposed sentences based, in part at least, upon considerations not in evidence and not proven at trial. The record shows that immediately after appellant was convicted by the jury on the burglary charge, the trial judge, after ascertaining that appellant was ready for sentencing, was informed by the State that appellant had been convicted of burglary in 1942 and sentenced to four years, and was again convicted of...