Carter v. State
| Citation | 15 Md.App. 242,289 A.2d 837 |
| Decision Date | 24 April 1972 |
| Docket Number | No. 557,557 |
| Parties | Charles Mitchell CARTER a/k/a Charles Richard Carter a/k/a Charles Lee Carter v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Weldon Leroy Maddox, Baltimore, for appellant.
Josef E. Rosenblatt, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and Barbara G. Daly, Asst. State's Atty., for Baltimore City, on the brief, for appellee.
Argued before ANDERSON, MORTON and ORTH, JJ.
The appellant, Charles Mitchell Carter, was charged under Indictment #7752 with robbery with a deadly weapon (first count) and with carrying a concealed weapon under Indictment #7754 (first count). On May 19 and 20, 1971, the appellant was tried in the Criminal Court of Baltimore before a jury, Judge Anselm Sodaro presiding, and was found guilty under the first count of each indictment. The appellant was sentenced to a term of imprisonment by Judge Sodaro on May 20, 1971. However, on June 24, 1971, the original commitment papers were changed by the trial judge. The actual sentences imposed will be discussed in some detail below.
On appeal the appellant, through his counsel, makes the following contentions:
1) The appellant was placed in double jeopardy by the action of the trial court in causing his original commitment papers to be changed.
2) The appellant was denied his right to a speedy trial.
3) The trial court erred in refusing to dismiss the indictments in violation of Md.Code, Art. 27, § 616S.
4) The trial court erred in refusing to dismiss the indictments in violation of Md.Code, Art. 27, § 591.
5) The evidence adduced was insufficient to support the convictions.
6) The appellant's conviction for carrying a concealed weapon merges with his conviction for armed robbery.
7) The trial court erred in failing to instruct the jury as to the elements of the crime of carrying a concealed weapon.
8) The trial court erred in admitting into evidence a ten dollar bill taken from the appellant.
In addition, the appellant has submitted, pro se, thirteen numbered contentions for our consideration.
At trial, the testimony of the complainant, Emanuel Abramowitz, was essentially as follows: On the night of October 18, 1969, he was on his way home from a Drug Fair store at Baltimore and Charles Streets where he was employed as a pharmacist. When he reached Pratt and Hanover Streets he was accosted by three black men who demanded all of his money. On producing his wallet, he was beaten with a silver pistol by one of the trio, strangled from the rear by a second man, and beaten with the fists of the third man. Approximately $45.00 was taken. The beating ceased when Abramowitz broke away from his assailants and sought help from two police officers who were the only other people on the street.
The testimony of the two policemen, Officers Robert W. Foltz and John Lewis, was essentially that as they pulled their unmarked police car up to a red light at Pratt and Hanover Streets, they saw three black men struggling with a white man. The white man, later identified as Abramowitz, broke away from the three black men and told the officers that he had been beaten and robbed. The officers testified that the three black men were the only other people on the street and that they were never out of their view. The officers then drove up to the trio, identified themselves as police officers, ordered one of the men to drop a gun he was carrying, placed the trio under arrest and ordered them to place their hands up against the wall. At this point the trio was frisked and Officer Lewis recovered a .44 caliber revolver from the right rear pants pocket of the appellant. The appellant was then taken to the Southern District Police Station where Officer Lewis removed a bloodstained ten dollar bill from the left front pants pocket of the appellant. The appellant presented no evidence following the completion of the State's case.
We will not consider the appellant's contentions in the order in which they were raised. We feel that his first contention, that he was placed in double jeopardy by the action of the trial court in changing his original commitment papers, has the most merit. Therefore we will consider this contention in the latter part of this opinion.
The appellant contends that since he was arrested on October 18, 1969, and was not tried until May 19, 1971, he was denied his right to a speedy trial. We find no merit in this contention. A review of the record reveals that the appellant was principally responsible in bringing about the delay of nineteen months by discharging, each time the case came up for trial, the three lawyers who were respectively appointed to represent him. Under the circumstances we find that the appellant's conduct constituted a waiver of his right to a speedy trial. State v. Lawless, 13 Md.App. 220, 228 n. 8, 283 A.2d 160, and cases cited therein. Further, the appellant does not show that he was prejudiced by the nineteen month delay, nor does he indicate in what manner the delay was caused by the purposeful or oppressive action of the State. State v. Lawless, supra, at 238-243, 283 A.2d 160.
The appellant contends that under the provisions of Md.Code, Art. 27, § 616S, he must be set free because he was not tried within 120 days after the prison authorities received a detainer against him and he requested a final disposition of his case. However, according to the testimony of Gloria Herndon, the custodian of records of the Maryland Penitentiary, where the appellant was held from October 19, 1969, until his trial, no detainers concerning the appellant were received, nor was any notice of a detainer received. As we construe Art. 27, § 616S, the Act becomes operative only when the warden of the institution in which the prisoner is being held receives knowledge of an indictment pending against the prisoner by notice to the warden of a detainer received by the Department of Correction. King v. State, 5 Md.App. 652, 661-663, 249 A.2d 468. In the instant case since no notice of a detainer was received by the warden of the Maryland Penitentiary, the Act is inoperative.
Maryland Code, Art. 27, § 591 establishes a time limit within which a defendant is to be brought to trial. Postponements are allowed only for extraordinary cause shown by the moving party. However, the Act took effect July 1, 1971, and the appellant was tried on May 19 and 20, 1971. Therefore, in the instant case, the Act relied upon by the appellant is inapposite.
The appellant challenges the sufficiency of the evidence adduced to support his convictions for robbery with a deadly weapon and carrying a concealed weapon. In determining whether the evidence was sufficient to support the convictions, the test, in a jury trial, is whether the evidence either shows directly or supports a rational inference of the facts to be proved, from which the trier of facts could be fairly convinced, beyond a reasonable doubt, of the defendant's guilt of the offense charged. Williams and McClelland v. State, 5 Md.App. 450, 459, 247 A.2d 731. Further, the weight of the evidence and the credibility of the witnesses are matters for the jury. Williams and McClelland, supra, at 467, 247 A.2d 731. The State established that the appellant was one of three men who beat Abramowitz with a gun and robbed him of approximately $45.00. We hold that the evidence adduced supports a finding of robbery with a dangerous and deadly weapon. Phenious v. State, 11 Md.App. 385, 274 A.2d 658; Brown v. State, 4 Md.App. 612, 244 A.2d 444.
The State also established that when the appellant was searched, a .44 caliber revolver was recovered from the appellant's right rear pants pocket. In Shipley v. State, 243 Md. 262, at 269, 220 A.2d 585 at 588, the Court of Appeals said:
'* * * (A) weapon is concealed if it is so situated as not to be discernible by ordinary observation by those near enough to see it if it were not concealed who would come into contact with the possessor in the usual associations of life, but absolute invisibility is not required; since ordinary observation does not extend to a search unusually careful, thorough or detailed, made because of suspicion that contraband which is not visible by ordinary observation may in actuality be present.'
On the record before us it appears clear that the pistol was not discernible by ordinary observation; indeed, it was found only after a search of the appellant's person was made by the police officer. The evidence was sufficient to support the jury's finding of carrying a concealed weapon.
The appellant argues that his conviction for carrying a concealed weapon should merge with his conviction for armed robbery. Since this issue was not raised below, it is not properly before us now. Md.Rule 1085; Alston v. State, 11 Md.App. 624, 630, 276 A.2d 225.
The appellant contends that the trial court erred in failing to instruct the jury as to the elements of the crime of carrying a concealed weapon. However, it has long been settled in Maryland that the trial court, in a criminal case, is obliged to give advisory instructions on every point of law essential to the crime charged and supported by the evidence only where a request for such instructions is made. Md.Rule 756 a and f; Wilson v. State, 239 Md. 245, 210 A.2d 824; Giles v. State, 229 Md. 370, 183 A.2d 359. Here no request for instructions was made and no objection made to the instructions given. The appellant further contends, however that this Court, under Md.Rule 756 g, should 'take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to * * *.' We do not know why no request for instructions was made nor why no objection was taken to the instructions given. In any case we find that the trial court's failure to give the...
To continue reading
Request your trial
-
Kelly v. State
...... Carter v. State, 15 Md.App. 242, 289 A.2d 837 (1972); Conway v. State, 5 Md.App. 198, 289 A.2d 862 (1972); Young v. State, 14 Md.App. 538, 288 A.2d 198 (1972); King v. State, 14 Md.App. 385, 287 A.2d 52 (1972); Metz v. State, 9 Md.App. 15, 262 A.2d 331 (1970). The evidence produced by the ......
-
State v. Jones
...... 3 We have since considered the question in fifteen additional reported decisions: Hoss v. State, 13 Md.App. 404, 283 A.2d 629; Kelly v. State, 14 Md.App. 287, 286 A.2d 806; Bowie v. State, 14 Md.App. 567, 287 A.2d 782; State v. Hamilton, 14 Md.App. 582, 287 A.2d 791; Carter v. State, 15 Md.App. 242, 289 A.2d 837; Thompson v. State, 15 Md.App. 335, 290 A.2d 565; Young v. State, 15 Md.App. 707, 292 A.2d 137, aff'd 266 Md. 438, 294 A.2d 467; State v. Hunter, 16 Md.App. 306, 295 A.2d 779; Smith v. State, 16 Md.App. 317, 295 A.2d 802; Sylvester v. State, 16 Md.App. 638, ......
-
Webb v. State
......The error, he says, "was brought to the attention of the trial court by Parole and Probation, disputed by the State, and then decided by the trial court." Citing Carter v. State, 73 Md.App. 437, 443, 534 A.2d 1015 (1988), he maintains that the court, having had the opportunity to consider both sides of the issue before ruling against him, further objection, by his trial counsel would have been futile, and was not required. . He further suggests ......
-
Robinson v. State
...... Kelly v. State, 16 Md.App. 533, 298 A.2d 470 (1973); Carter v. State, 15 Md.App. 242, 289 A.2d 837 (1972); Conway v. State, 15 Md.App. 198, 289 A.2d 862 (1972); Young v. State, 14 Md.App. 538, 288 A.2d 198 (1972); King v. State, 14 Md.App. 385, 287 A.2d 52 (1972); Metz v. State, 9 Md.App. 15, 262 A.2d 331 (1970). . Appellant argues that the ......