Boone v. State, 48

CourtCourt of Special Appeals of Maryland
Writing for the CourtBefore MURPHY; ORTH; THOMPSON
Citation237 A.2d 787,3 Md.App. 11
PartiesRoosevelt BOONE v. STATE of Maryland.
Docket NumberNo. 48,48
Decision Date24 January 1968

Page 11

3 Md.App. 11
237 A.2d 787
Roosevelt BOONE
STATE of Maryland.
No. 48.
Court of Special Appeals of Maryland.
Jan. 24, 1968.

Page 13

[237 A.2d 790] Robert F. Freeze, Baltimore, for appellant.

Frank A. DeCosta, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Samuel Peregoff, State's Atty., and Asst. State's Atty., for Baltimore City, respectively, Baltimore, on the brief, for appellee.


ORTH, Judge.

The appellant, Abraham Goode, Alphonso Obdiah Craft, and James Kitt were jointly indicted for the murder and robbery

Page 14

with a deadly weapon of Charles Oliver Hazard by a grand jury for the City of Baltimore on January 29, 1965, prior to the decisions of the Court of Appeals in Schowgurow v. State, 240 Md. 121, 213 A.2d 475 and State v. Madison, 240 Md. 265, 213 A.2d 880. On November 2, 1965 the appellant and the other co-defendants were again indicted for the robbery with a deadly weapon, and, with the exception of Goode, for the murder, 1 and the original indictments against the appellant were dismissed upon his motion based on the decision in Schowgurow on November 9, 1965. On February 14, 1966, upon the appellant's request for a change of venue, his case was removed to the Circuit Court for Baltimore County where trial was held before a jury. The jury returned a verdict of 'guilty' on the murder indictment without specifying whether it was murder in the first or second degree. 2 As Art. 27, § 412, Md.Code (1967 Repl.Vol.) provides that on finding a person guilty of murder, the jury shall '* * * ascertain in their verdict whether it be murder in the first or second degree * * *', the trial court granted the appellant's motion for a new trial. The appellant waived a trial by jury at the retrial. The court convicted him of murder in the first degree and sentenced him to imprisonment for the term of his natural life.

The State's case depended in large measure upon the testimony of the co-defendant, Craft, who was granted immunity from prosecution, the cases against him being stetted. Craft had testified for the State in the trial of the co-defendant, Kitt. 3

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When called to the stand in the [237 A.2d 791] instant case, however, Craft stated that he had been advised by his attorney that he had been granted immunity in the Case of Kitt v. State for his testimony, '* * * but I was never informed that I would have to testify against Boone in this case, and I informed the State that I didn't want to testify and I still don't want to testify in this case.' He indicated that it was his constitutional right not to testify as the testimony might incriminate him but he admitted he testified on 'the same charge' in the case against Kitt. The trial court held that Craft was a compellable witness and directed him to answer questions 'pertinent to the issue here involved, namely * * * the indictment of the defendant, Roosevelt Boone.' The appellant contends that the trial court erred in compelling Craft to testify. The contention is fully answered by Butz v. State, 221 Md. 68, 73-74, 156 A.2d 423, 426:

'The privilege against self-incrimination is a personal one and must be asserted by the witness, and, although it is by no means certain that Mrs. Curry (the witness) properly claimed the privilege, for the purposes of this case we shall ssume that neither the court nor the prosecutor, without conferral of power by statute, could grant her immunity and that she properly claimed the privilege. With both of these assumptions in favor of the appellant, it avails him nothing. The privilege belonged to the witness, not to the defendant. Roddy v. Finnegan, 43 Md. 490, 502; Raymond v. State, 195 Md. 126, 130, 72 A.2d 711. Cf. Richardson v. State, 103 Md. 112, 117, 63 A. 317. It is intended for the protection of the witness only and does not involve any right of the parties to litigation (unless, of course, the witness is also the party). 8 Wigmore, Evidence (3rd Ed.), Secs. 2196, 2270. The testimony given by a witness, who has a proper claim of privilege, is not subject to objection on the ground of privilege at the instance of the defendant, but is competent evidence and admissible against him, if material. Chesapeake Club of Annapolis City v. State, 63 Md. 446, 455, 458. And if a witness makes a claim of privilege and it is

Page 16

improperly disallowed by the court, it is not reversible error on behalf of a party to the action. Wigmore, ibid., and other authorities named below.

In making the above ruling, we realize that it is not in conformity with one phase of the Chesapeake Club case, just referred to, and, insofar as that case is to be construed as a general holding to the effect that a defendant in a criminal case is entitled to a new trial because privileged, though material, testimony of a witness, who is not a party, has been admitted in evidence, we decline to follow the same.'

See also Forrester v. State, 224 Md. 337, 167 A.2d 878. Thus we think that the testimony of Craft was competent evidence and, being clearly material, was admissible against the appellant. Even assuming that the testimony was privileged, which we need not decide, its admission in evidence did not constitute reversible error. The appellant relies on Royal v. State, 236 Md. 443, 204 A.2d 500 and Shifflett v. State, 245 Md. 169, 225 A.2d 440, urging that in compelling Craft to testify the trial court did not follow the guidelines as to procedure established by those cases. We do not find them apposite. In Royal the Court found no impropriety in the trial court not requiring the witnesses called by the defendant to testify in his behalf. The Court said, 236 Md. page 448, 204 A.2d page 503:

'In circumstances where the court is satisfied that the claim has a substantial [237 A.2d 792] basis, the mere refual to testify under a claim of privilege may justify the upholding of the privilege.'

But the Court again stated that '* * * the privilege against self-incrimination is a personal one and only the witness may assert it.' p. 447, 204 A.2d p. 502. Shifflett was an appeal from a contempt citation for refusal to testify and the Court held that since no questions were asked by the prosecuting attorney with regard to matters material to the criminal cases then on trial, there was no contempt.

It is clear that Craft was a principal in the second degree. He drove the automobile used by the actual perpetrators of the crimes and was in close proximity and contiguity to the immediate

Page 17

place where the crimes were committed, in a position to render aid and assistance. Vincent v. State, 220 Md. 232, 151 A.2d 898; Agresti v. State, 2 Md.App. 278, 234 A.2d 284. He was, therefore, an accomplice. Barton v. State, 2 Md.App. 52, 233 A.2d 330. His testimony being admissible, the question is whether it was sufficiently corroborated, the appellant contending that it was not.

At common law a verdict of the jury would not be set aside merely because founded on the evidence of an accomplice which was not corroborated. Luery v. State, 116 Md. 284, 81 A. 681. Some jurisdictions do not require corroboration. See State v. Carey, 76 Conn. 342, 56 A. 632; Burns v. People, 148 Colo. 245, 365 P.2d 698; Commonwealth v. Taber, 350 Mass. 186, 213 N.E.2d 868; Lyda v. United States, 321 F.2d 788 (9th Cir.). In some jurisdictions it is required by statute. See People v. Kress, 284 N.Y. 452, 31 N.E.2d 898; Hubbard v. State, 35 Ala.App. 211, 45 So.2d 795; People v. Lyons, 50 Cal.2d 245, 324 P.2d 556. In at least one jurisdiction other than Maryland it is required by judicial decision. See Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811.

In Maryland the rule was formulated in Luery v. State, supra. After discussing the reasoning behind the development of the rule, the Court said, 116 Md. pp. 293-294, 81 A. p. 684:

'Hence it would seem to be safer to require some corroboration * * *. As the reason for the rule, as adopted by most courts, is that the testimony of an accomplice alone and unsupported is regarded as too doubtful to be safe, the important matter is to have him supported in at least some of the material points involved tending to show the guilt of the accused.'

It said, however, that the trial court should not require too much in the way of corroboration and that it is not required to have sufficient evidence to convict, exclusive of the accomplice's testimony. In Wright v. State, 219 Md. 643, page 648, 150 A.2d 733, page 736, the Court said:

'In all the cases which followed the Luery case, supra, during the period from 1911 to 1950, the rule was restated and the judgments were either affirmed

Page 18

or the appeals dismissed because the sufficiency of corroboration was reviewable only on a motion for a new trial in the lower court and not on appeal.'

Since December 1, 1950 (the effective date of the amendment to § 5 of Article XV of the Constitution of Maryland giving the Court of Appeals the right and duty-if and when a question is properly raised-to review the legal sufficiency of the evidence in a criminal case) to the decision in Wright, the sufficiency of the corroboration of an accomplice's testimony was considered in a number of cases, and was deemed sufficient because it '* * * consisted of the behavior and conduct of the accused, or his presence at the scene of the crime under suspicious circumstances, or the ample and sufficient testimony of non-accomplice witnesses in support of some of the material points of the accomplice's testimony.' 219 Md. 648, 150 A.2d 736. In Wolf v. State, 143 Md. 489, 122 A. 641, the Court had said, by way of dictum, [237 A.2d 793] that the requirement was that the corroborative evidence '* * * should tend to sustain the charge with respect to 'some of the material points involved' (quoting Luery v. State, supra).' In Wright the Court thought it salutary to discuss more fully what...

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