Christian v. State

• Decision Date: 18 November 1985
• Docket Number: No. 169,169
• Citation: 65 Md.App. 303,500 A.2d 341
• Parties: Frederick Allen CHRISTIAN v. STATE of Maryland. Sept. Term 1985.
• Court: Court of Special Appeals of Maryland

Page 303

65 Md.App. 303

500 A.2d 341

Frederick Allen CHRISTIAN v. STATE of Maryland.

No. 169 Sept. Term 1985.

Court of Special Appeals of Maryland.

Nov. 18, 1985.

Thomas J. Saunders, Dist. Public Defender, Towson (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Jillyn K. Schulze, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, Sandra A. O'Connor, State's Atty. for Baltimore County and Karen Williamson, Asst. State's Atty. for Baltimore County, Towson, on the brief), for appellee.

Argued before MOYLAN, WILNER, and GARRITY, JJ.

GARRITY, Judge.

Aside from our review of the merits of the conviction in this matter, we have been asked to determine whether a trial court, prior to sentencing, may properly reconsider and rescind its order for a new trial.

Background

On May 3, 1985, the appellant, Frederick Christian was convicted by a jury in the Circuit Court for Baltimore County (Sfekas, J. presiding) of daytime housebreaking, theft of goods valued at over $300, and malicious destruction of personal property. He was sentenced to the jurisdiction of the Division of Correction for a period of five years on the housebreaking charge, a consecutive term of four years on the theft charge, and a concurrent term of one year on the malicious destruction charge.

At the trial, Mr. Gordon Rinehart testified that he was at home on February 20, 1984, at approximately 4:30 p.m., when he noticed appellant and another man alight from a blue Buick, place a rag over the rear license plate, and walk into the apartment building where he (Mr. Rinehart) resided. A short time later, Mr. Rinehart heard "two loud booms" and went back to the window. He advised the jury that he then "watched the defendant and a shorter individual come out of the apartment complex with James's (the victim, James Flood) 25-inch color TV set, put it in the back seat, jump in the automobile and speed off." Another neighbor, Mr. Jerome Cook, testified that he "heard a big commotion" and looked out his window. He observed two individuals, one of whom he identified as the appellant, carrying a television and placing it in a blue Buick before it sped off. Mr. Cook further stated that his neighbor's apartment (Mr. Flood's) appeared to have been ransacked and left in disarray. He explained that "you could see where the TV was missing at because he had cable hooked up to it and they broke the cord off of that to get the TV set." Without objection, both Mr. Rinehart and Mr. Cook positively identified the appellant as one of the individuals involved in the incident.

The victim, Mr. James Flood, testified that the door to his apartment had been pried open and the lock seat splintered off. He found his apartment to have been ransacked and his color television set, which he valued at approximately $420, missing.

Prior to the sentencing, the trial court granted a new trial on the grounds that on discovery the State had failed to disclose a statement the appellant had made to the victim. Four and one-half months later, still prior to sentencing, the trial court rescinded its order granting a new trial. The basis of the reconsideration was the holding in White v. State, 300 Md. 719, 481 A.2d 201 (1984). The Court held therein that "the State is not required to produce a copy of a statement by the defendant unless it was made to a State agent and is one which the State intends to use at a hearing or trial." 300 Md. at 733, 481 A.2d 201.

We are asked to review the following questions:

1. Whether the trial court had jurisdiction to rescind its order granting a new trial.

2. Whether the court erred in allowing the owner of a stolen television set to testify as to its value without first laying a foundation as to his knowledge of value.

3. Whether the evidence was sufficient to support the convictions.

4. Whether the trial judge erred in failing to merge malicious destruction of property with that of the breaking and entering charge.

5. Whether a court reporter failed to transcribe portions of the testimony.

I. Revocation of New Trial Order

Appellant contends that the trial judge lacked power to revise his new trial order. The State argues, as the court below decided, that the court had power to revoke its new trial order, and that such authority was confirmed in Williamson v. State, 25 Md.App. 338, 333 A.2d 653 (1975).

In Williamson, the defense counsel had argued for a new trial on the basis that a judgment of acquittal should have been granted. The trial judge became somewhat upset when a newly assigned assistant state's attorney was unprepared to discuss the matter. Apparently, the prosecutor who had actually tried the case was no longer with the office. The judge thereupon declared that "I will grant your motion for a new trial...." After the State strongly protested, the judge acquiesced and allowed a two-day continuance on the motion. At the hearing, the judge determined not to grant a new trial and proceeded to impose sentence. Williamson thereupon appealed and contended that the judge had improperly revised his new trial order.

In considering that set of facts, we purposefully refrained from making a broad declaration of the revisory power of courts over new trial orders. We stated:

Appellant acknowledges that the majority of jurisdictions permit reconsideration of the grant of a motion for new trial, 24 C.J.S., Criminal Law, § 1510, 58 Am.Jur.2d, New Trial, § 217, but argues that the Maryland rule should be that once the motion is granted, reconsideration is prohibited. Although there may be situations where reconsideration of the grant or denial of a new trial is arguably inappropriate, the present case is clearly not such a situation. Sentencing had not taken place, thus judgment had not been entered. Id. at 348, 333 A.2d 653.

On the basis of the trial judge's actions and expressions in Williamson, we interpreted his original declaration as a mere expression of future intention to grant the motion, rather than a present order. Writing on our behalf, Judge Lowe observed: "Even if the motion had been granted, the reversal of that decision was within the trial judge's discretion under the circumstances indicated. Annot., 145 A.L.R. 400."

We hold that in a criminal matter, whenever there is a conviction, there is no final judgment until sentencing, and that prior thereto, a judge may reconsider his order granting a new trial.

II. The Trial

A. Owner's Testimony as to Value

Appellant next contends that the trial judge should not have admitted the owner's valuation of the stolen property. He avers that the State failed to establish a sufficient foundation to qualify the owner to express such an opinion. Specifically, the owner of the property testified that the television set had a value of approximately $420.

It is well settled in this State that an owner of personal property in common use may express an opinion as to its value without qualification as an expert.... The rule applies in criminal as well as civil cases. Jewell v. State 216 Md. 110, 112 (1958); Shipley v. State, 220 Md. 463, 466 (1959); Benton v. State, 228 Md. 309, 311 (1962). The rule is almost universally recognized. See Underhill, Criminal Evidence (5th ed.) § 603, p. 1474; Wigmore, Evidence (3rd ed.) § 176; 2 Wharton, Criminal Evidence (12th ed.) § 550. The cases are collected in an...