Barton v. State

• Decision Date: 07 September 1967
• Docket Number: No. 255,255
• Parties: Larry Lowell BARTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 52

2 Md.App. 52

233 A.2d 330

Larry Lowell BARTON v. STATE of Maryland.

No. 255.

Court of Special Appeals of Maryland.

Sept. 7, 1967.

Certiorari Denied Dec. 7, 1967.

Nelson R. Kandel, Baltimore, for appellant.

Thomas A. Garland, Asst. Atty. Gen., for appellee, Francis B. Burch, Atty. Gen., Franklin Goldstein Asst. Atty. Gen., Charles E. Moylan, Jr., and James Dudley, State's Atty., and Asst. State's Atty. for Baltimore City, respectively, on brief.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and DANIEL T. PRETTYMAN, Special Judge.

PER CURIAM.

On September 7, 1966, the appellant was convicted of robbery with a deadly weapon under one indictment and of carrying concealed a deadly weapon and of being a rogue and vagabond under another indictment, by a jury in the Criminal Court of Baltimore. He was sentenced to imprisonment for a term of 5 years on the first conviction and to imprisonment for a term of 2 years on the other convictions, the sentences to run consecutively.

Marion Charles Whalen, also charged with the crimes, pleaded guilty at a trial held prior to that of the defendant and testified for the State. He said that, on the evening of May 31, 1966 and the early monrnig of June 1st, he was in the company of the appellant and Bernard Leo Cook, another co-defendant. They had been drinking beer in various bars. About 1:00 A.M. on June 1st they left a bar on Greenmount Avenue and rode around in a red Chevrolet II automobile driven by Cook. They had run out of money and when they got in the vicinity of Belair Road and Erdman Avenue they agreed to rob a taxicab. The appellant and Whalen got out of the automobile and seeing a taxi parked on Belair Road got in the rear. The appellant sat behind the driver and Whalen sat on the appellant's right. The appellant told the driver to drive to North and Harford Avenues by way of Clifton Park. In the park, the appellant pulled a gun and asked the driver for his money. When the driver did not comply immediately, thinking he was kidding, the appellant grabbed him by the collar. The driver handed Whalen coins and a wallet containing paper money. The driver was ordered to go to Collington Park, and when they arrived there, Whalen and the appellant left the cab and were picked up by Cook in the red Chevrolet. Whalen put the paper money on the floor under the seat and the coins in the ash tray. He saw the appellant throw the gun under the front seat.

John F. Bisasky, testifying for the State, said that about 1:00 A.M. on June 1st, he was in his taxi, parked in the vicinity of Belair Road and Erdman Avenue, checking his manifest while waiting for a call for a fare. Two men got in the back of the taxi and he was told to drive to North and Harford Avenues by way of Clifton Park. As he was driving through the park on Clifton Park Drive one of the men told him to stop. When he did not respond immediately, the man sitting directly behind him, held a gun at his head, grabbed him by the neck, and told him to stop or 'he would blow my brains out.' He stopped and the man with the gun said, 'Your money and nobody gets hurt.' He handed his wallet containing $7 in bills to the man, whom he identified as Whalen, sitting to the right of the man with the gun and on further demand, gave him about $5 in change from his money bag. He was directed to drive to Rose Street in Collington Park and while doing to observed a Chevrolet, red in color, following his taxi. When he arrived at Rose Street the red automobile pulled ahead of the taxi, the men jumped out of the taxi, got in the red automobile and drove away. He called 'emergency' on his radio, 'the police were there in a minute,' and he informed them what had occurred, giving them a description of the automobile and the robbers-two white males, neatly dressed. Bisasky was identified by Whalen as the man he and the appellant had robbed.

The police department broadcast the information and about 1:23 A.M. three police officers, in an unmarked police car, having received the information about the hold-up, observed an automobile at the intersection of Patterson Park and North Avenues answering the description of the one in which the robbers had driven away. It was occupied by three white males, 'neatly dressed'. The police followed the automobile to Eager Street and Broadway where they stopped it. The officers saw a revolver on the floor of the automobile on top of paper money, which later was ascertained to be seven one dollar bills. The appellant, Whalen and Cook were the occupants of the automobile. All three were arrested. At the secene of the arrest a search of the automobile disclosed a pistol on the floor under the front seat. Both the revolver and the pistol were loaded. The pistol was identified by Whalen as the one used by the appellant in the robbery.

A motion for judgment of acquittal, made at the close of the evidence by the State, was denied as to the count of robbery with a deadly weapon in one indictment and as to the counts of carrying a concealed weapon and being a rogue and vagabond in the other indictment and granted as to all other counts in both indictments. No evidence was offered by the appellant.

On this appeal the appellant presents four contentions relating to the testimony of Whalen.

First, he argues that Whalen was an accomplice whose testimony was not corroborated. We agree that Whalen, an admitted participant in the robbery, was a principal in that felony and thus an accomplice. Coleman v. State, 209 Md. 379, 121 A.2d 254; Ballard v. State, 236 Md. 579, 204 A.2d 672; Assuming, without deciding, that Whalen was an accomplice in the crimes of carrying a concealed weapon and being a rogue and vagabond, there was ample corroboration of Whalen's testimony with respect to all three crimes. It is sufficient to point out that the taxi driver testified that he was robbed at gun point, that $7 in bills were taken from him and that the two men who robbed him entered a red Chevrolet. The police apprehended the appellant and Whalen in a red Chevrolet, recovered $7 in bills and the pistol used in the robbery. Bisasky identified Whalen as the man to whom he had given the money. This is sufficient corroboration of Whalen's testimony to sustain the robbery conviction. The testimony of Bisasky that the man sitting directly behind him held a gun at his head and threatened to blow his brains out, and of the police as to the apprehension of the appellant and the location of the pistol in the car, was sufficient to corroborate the testimony of Whalen as to the crimes of carrying a concealed weapon and the relevant part of the rogue and vagabond statute-that the appellant had upon him 'any pistol at places and under circumstances from which may be presumed an intent feloniously to assault any person'. While a defendant may not be convicted solely upon the uncorroborated testimony of an accomplice, Tucker v. State, 237 Md. 422, 206 A.2d 691, not much in the way of corroboration is required, McKenzie v. State, 236 Md. 597, 204 A.2d 678. There was an abundance of corroboration here.

Second, in a motion for discovery, the appellant prayed an order requiring the State to give him 'the substance of any oral or written statements made by the Defendant which the State proposes to produce as evidence to prove its case.' In answer, the State said that the 'Defendant made no statements to the police. The State excepts to the request for the substance of any oral conversations between the Defendant and any other witnesses, not agents of the State as not within the purview of Maryland Rule 728.' At a hearing before trial on oral exception to the answer, the lower court held that the request had been answered by the State insofar as the appellant was 'entitled to receive an answer.' At the trial the State did not proffer any statements made by the appellant. Although Whalen, in his testimony,...