Bever v. State

• Citation: 243 A.2d 634,4 Md.App. 436
• Decision Date: 24 June 1968
• Docket Number: No. 347,347
• Parties: Thomas Bryson BEVER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 436

4 Md.App. 436

243 A.2d 634

Thomas Bryson BEVER v. STATE of Maryland.

No. 347.

Court of Special Appeals of Maryland.

June 24, 1968.

Fred W. Rickerson, Lanham, for appellant.

Fred Oken, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty. for Prince George's County, and Benjamin R. Wolman, Asst. State's Atty. for Prince George's County, Upper Marlboro, on the brief, for appellee.

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

PER CURIAM.

The appellant was found guilty by a jury in the Circuit Court for Prince George's County of daytime housebreaking with intent to commit grand larceny and grand larceny and sentenced generally to imprisonment for a term of 4 years.

I

The case came on for trial at 3:24 P.M. Out of the presence of the jury panel, counsel for the appellant requested a continuance because 'the jury panel is sitting on its last day. They have been sitting here all day in court with nothing to do except hang around. I am sure that every one of these jurors, if they are like I am, at this hour of the day are pretty well teed off and pretty well fed up with the fact that they have been sitting here all day doing nothing, and they are in a hurry to get home'. He also alleged that he felt it impaired his ability as counsel to commence trial at that hour and suggested that the ability of the trial judge may also be impaired. He urged that 'to start at this hour I think very definitely is prejudicial to the defendant's right to a fair and impartial jury trial'. The court denied the request for a continuance, noting that the case came in for trial 'at that hour solely because of the calendar of the court' and through no fault of the State or the appellant. It found no reason not to start the trial, stating that there was 'an amount of time to go on the regular court day'. It said that it would submit a voir dire question to all prospective jurors with respect to the matter if requested. At the request of defense counsel the court said to the jury panel:

'Members of the jury panel, I am going to ask you a question and I want-I don't want any embarrassment. I want a true answer and I don't want anyone to hesitate in the slightest if you feel that this would in some way affect your decision in the case. It is now ten minutes of four and we are about to start a case. I don't know how long the case will last. It may carry beyond 5 o'clock. It may go beyond six. Possibly it might to even later. Do any of you have commitments tonight or are any of you in such a state of fatigue or tiredness that you feel that this condition of your plans for the evening or your state of alertness or tiredness, as it may be, would in any way be prejudicial in reaching a decision in the case?' ¹

No prospective juror indicated that those circumstances existed with respect to him so as to be prejudicial in any way to his reaching a decision in the case.

Appellant contends on appeal that the lower court abused its discretion in refusing to continue the case and in support of the contention states that the appellant 'did not receive a fair trial because of the late hour of beginning trial, evidenced by the fact that the jury deliberated only seventeen minutes, and by the comments of the trial court in expediting the trial'. We find no substance in the reasons advanced to support the contention. It cannot be presumed here from the length of the jury's deliberation that they did not properly fulfill their sworn duty. Nor do we find from the record that the court in any way was 'rushing the trial along', as alleged by the appellant. He quotes eight comments of the court as illustrative of this allegation, taken out of their context and scattered throughout same 104 pages of the transcript of the proceedings. None of the remarks now referred to were objected to at the time they were made. At no time during the trial did the appellant assert that any conduct of the trial court 'resulted in permeating the proceedings with an aura of haste' or claim that he was prevented or discouraged from presenting a full defense. The cited remarks of the trial court were no more than a reasonable attempt to maintain an orderly expedition of the trial and were not in any respect improper or prejudicial to the appellant. The allowance or denial of a continuance, as the appellant recognizes, is within the sound discretion of the trial court. Johnson v. State, 237 Md. 283, 288, 206 A.2d 138; Bright v. State, 1 Md.App. 657, 661, 232 A.2d 544. We have no difficulty in finding that the trial court did not abuse its discretion and that the appellant was not denied a fair trial by the case being then tried.

II

In examining the jury on their voir dire the court asked if any one on the panel or member of their family had been a member of a police or law enforcement agency. One prospective juror said that he had been a police officer in the District of Columbia and had been retired for three and a half years. After the voir dire examination, out of the presence of the jury, the court struck four jurors for cause. At this point defense counsel moved that the retired police officer be stricken, stating, 'I never heard of a retired police officer serving on a jury case'. The court denied the motion, but at counsel's request asked the pollowing question: 'In view of your past experience in the police department * * * would this in any way prevent you from rendering a fair and impartial verdict in a criminal case based upon the evidence that you heard, or would you be free of any sort of favorable prejudice towards the police, a police agency? * * * It would not affect you in any way?' The juror replied, 'No, sir'.

On appeal the appellant does not contend that the juror was not competent to serve or that the fact that he had been a police officer was a sufficient basis for challenging him for cause. See Borman v. State, 1 Md.App. 276, 229 A.2d 440. He urges, however, that his counsel was exercising a peremptory challenge, the denial of which was error as he had not made the four peremptory challenges permitted him. Md. Rules, 746 a 1. We think it clear from the record that defense counsel was not attempting to exercise a peremptory challenge but a challenge for cause which was properly denied. We think it also clear from the record that both the trial court and defense counsel considered the challenge as one for cause and that it was on this basis that the court made its ruling. The privilege of challenging peremptorily is a right to reject a juror without the necessity of first showing cause. Parker v. State, 227 Md. 468, 177 A.2d 426. The appellant had peremptory challenges available to him and could have exercised them as a matter of right until the jury was sworn. Md. Rules, 746 c. He did not do so and cannot now complain.

III

At the trial, defense counsel objected to a State's witness testifying that he had picked out the defendant's picture from a stack of photographs shown him by the police. Out of the hearing of the jury he moved for a mistrial on the ground that by the testimony the jury knew that the police had a photograph of the appellant and 'there is but one logical conclusion the jury can draw' and that is that the appellant had a prior police record since his photograph was in the possession of the police. The trial court denied the motion.

Testimony by a witness that he was able to identify the accused from police photographs is admissible. Judy v. State, 218 Md. 168, 146 A.2d 29; Basoff v. State, 208 Md. 643, 119 A.2d 917. See Austin v. State, 3 Md.App. 231, 238 A.2d 569. We do not agree that the mere fact that an accused was identified from photographs shown to a witness by the police results in a conclusion by the jury that the accused had a criminal record. The challenged testimony as adduced was properly admissible and it was not error for the court to refuse to declare a mistrial. Further, the appellant elected to testify in his own behalf and on direct examination admitted to having been previously convicted of breaking and entering and on cross-examination to other convictions. We see no prejudice to him.

IV

The appellant also contends that the evidence was not sufficient to sustain the convictions and the court erred in denying his motions for judgment of acquittal. The question of the denial of the motion for judgment of acquittal made at the close of the evidence offered by the State is not before us as the appellant withdrew it by offering evidence. Md. Rule, 755 b. The review on appeal of the sufficiency of the evidence was preserved by a renewal of the motion at the close of all the evidence.

On 26 April 1966 Walter A. Bonfield testified that he left his third floor apartment, in which he lived alone, about 8:00 A.M. The door to his apartment had an 'automatic lock' and when he left he checked the door to make sure it was locked. He returned about 6:15 P.M. and as he went 'up the landing to the level' on which he lived, he noticed that his apartment door was open. He found that a television set, purchased two weeks before for $154, his raincoat valued at $25, his wedding ring valued in excess of $50 and a transistor radio valued at $25 were missing. He called the police 'to report the robbery'. He did not know the appellant and had not given him permission to enter his apartment. The missing items were not recovered.

Dennis F. English testified that on 26 April 1966 he lived in the same apartment building in which was Bonfield's apartment and was home all that day. In the early part of the afternoon, between 2:00 and 3:00 P.M., he was working on his car in the parking lot directly in front of the apartment building. Two men came out of the apartment entranceway. One was carrying a white, plastic case, portable television set and the other a radio. They entered an automobile on the parking lot and drove away. He 'took down the...