Bulluck v. State, 113

CourtCourt of Appeals of Maryland
Citation219 Md. 67,148 A.2d 433
Docket NumberNo. 113,113
PartiesIsaac BULLUCK v. STATE of Maryland.
Decision Date16 February 1959

Nelson R. Kandel, Baltimore, for appellant.

Joseph S. Kaufman, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., J. Harold Grady, State's Atty., Baltimore, for Baltimore City, Thomas C. Nugent and James Price, Asst. State's Attys., Baltimore, for Baltimore City, on the brief), for appellee.



Two appeals in one record bring up for review judgments and sentences of death, imposed in one case after conviction by the court without a jury, and in the other after a jury had found a verdict of guilty.

In the first case a medical student at Johns Hopkins returned in the early hours of a July Sunday from a Saturday night party at the home of friends, parked her car and started into the house in the 1000 block of North Broadway where she stayed. A Negro followed her into the vestibule and there raped her. The appellant was arrested the next day but released when the victim did not pick him from a line-up. The following February, a Negress, a housewife and the mother of five children, was raped in the vestibule of her home in the same general neighborhood. Again the appellant was arrested. He made admissions to the police which linked him to both rapes and was charged with both.

In the first case appellant makes four points: (a) because the case turned on his being identified as the rapist, the refusal to grant his request that all witnesses be sequestered before he was called upon to stand and plead, was prejudicial error; (b) the trial court erroneously allowed a police detective to read from the transcription he had made at the time appellant gave a statement; (c) it was not shown the victim was raped; and (d) appellant was not identified as the attacker.

Judge Sodaro responded to the request for exclusion of witnesses from the court room by instructing the clerk to arraign the accused, and after the plea of not guilty was made, granted the motion. The purpose of the sequestration of witnesses has been said to be to prevent them from being taught or prompted by each other's testimony. 6 Wigmore on Evidence, Sec. 1838, p. 352. Wigmore, in the same volume, says in Sec. 1840, p. 360, that the time for sequestration begins with the beginning of testimony and ends when it ends. Formerly it was held that the matter was to some extent discretionary with the trial court, with a right to review on appeal for abuse of discretion. Jones v. State, 185 Md. 481, 489, 45 A.2d 350. Now Maryland Rule 737, under the title 'Trial', provides that the court at the request of a defendant or the State shall order that the witnesses be excluded from the court room until called to the stand. If identification is a crucial or important factor in a case, exclusion of witnesses, before the accused is put physically in a position where it is apparent that he is the accused, may be necessary for his proper protection.

We assume, without deciding, that the appellant's request should have been granted, but we think no prejudicial error resulted from its denial. The prosecuting witness could not testify that the accused was the man who attacked her, she could say only that he closely resembled the man who did, which is what she had said earlier of his photograph which she picked from police files. Obviously, she was not helped to positive identification by the fact that, presumably, she saw the accused stand for the arraignment, and he was not prejudiced.

There is no substance to appellant's claim that Detective Rawlings should not have been allowed to testify with the aid of the notes he had made in his own hand at the time the accused gave his statement, written down as he gave it. The statement was not offered; the court did no more than allow Detective Rawlings to refresh his recollection of what the accused had said. This is proper. McGuire v. State, 200 Md. 601, 606, 92 A.2d 582; Basoff v. State, 208 Md. 643, 652, 119 A.2d 917; Burgess v. State, 161 Md. 162, 169, 155 A. 153, 75 A.L.R. 1471. Furthermore, Detective Keifer, who was present when the accused made his statement, testified without objection that he had told the two detectives just what Rawlings had testified he had.

Appellant argues that the trial court was clearly wrong in reaching a verdict of guilty on the evidence before him. Although at the trial appellant conceded that the prosecuting witness had been reped by someone, he now claims that the evidence was insufficient to establish rape. Despite the concession, Judge Sodaro required the prosecuting witness to establish that she had been raped, and she testified fully as to all the necessary elements of force and accomplishment.

The evidence as to the identity of her assailant included various indications that appellant was the guilty man. The victim picked his photograph from hundreds shown her by the police as one closely resembling her attacker. At the trial the victim said there was no light in the vestibule except that coming through the door of the house, which hampered positive identification, but she picked out the appellant as one who resembled her attacker 'very closely.' The wife of the accused, who was pregnant at the time of the rape, told police that her husband had not come home until daybreak on the morning of the day of the crime. Under cross-examination, she admitted that what she had told police was so, after denying on direct examination both the making of the statement and the fact. The appellant, when arrested the day after the crime, was wearing the same trousers he had worn the night of its occurrence. On them were stains which he admitted to be, and which were analyzed as, semen stains. He explained the stains as having come from another act of intercourse with a prostitute, an explanation the trier of fact was not required to accept. The appellant, when arrested in February, was questioned about the July rape. At first he denied any knowledge of it, but later reconsidered and, in the words of Detective Rawlings, 'said he would tell us about it.' His version was that about 1:30 A.M. he was walking in the 1000 block North Broadway when he saw a white woman get out of a car and start toward a house, that they started to talk and she asked him if he would like to kiss her and invited him into the vestibule where, at her request, he kissed and fondled her but did not complete the act of...

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  • Lupfer v. State Of Md.., 1046, Sept. Term, 2008.
    • United States
    • Court of Special Appeals of Maryland
    • September 3, 2010
    ...or prompted by each other's testimony.’ ” 194 Md.App. 248 Tharp v. State, 362 Md. 77, 95, 763 A.2d 151 (2000) (quoting Bulluck v. State, 219 Md. 67, 70-71, 148 A.2d 433 (1959)). It is an attempt to avoid “ ‘an artificial harmony of testimony that prevents the trier of fact from truly weighi......
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    ...under Maryland Rule 753, the sequestration of witnesses is mandated. Swift v. State, 224 Md. 300, 167 A.2d 762 (1961); Bulluck v. State, 219 Md. 67, 148 A.2d 433, cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 85 (1959). See also Gwaltney v. Morris, 237 Md. 173, 205 A.2d 266 (1964); St......
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