Cleveland v. State

• Decision Date: 12 August 1971
• Docket Number: No. 578,578
• Citation: 12 Md.App. 712,280 A.2d 520
• Parties: James Willie CLEVELAND v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 712

12 Md.App. 712

280 A.2d 520

James Willie CLEVELAND v. STATE of Maryland.

No. 578.

Court of Special Appeals of Maryland.

Aug. 12, 1971.

James F. Garrity, Baltimore, for appellant.

James F. Truitt, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and William Parsons Fennell, State's Atty., Kent County, on brief, for appellee.

Argued before THOMPSON, CARTER and GILBERT, JJ.

GILBERT, Judge.

This is the second appeal to this court by James Willie Cleveland. We reversed and remanded for a new trial the first conviction of the Appellant in Cleveland v. State, 8 Md.App. 204, 259 A.2d 73 (1969). Upon retrial Cleveland was again convicted of armed robbery and assault and battery and received sentences of 20 years and 5 years, respectively with the latter sentence to be served concurrently with the former.

The present record reveals that on the evening of November 9, 1968, at approximately 8:00 p. m., Sheriff Bartus O. Vickers received a telephone call from Leroy R. Crosby, an employee of the Rock Hall Liquor Store in Kent County, Maryland, that both he and the store had been robbed at gun point by a masked black male. Crosby had been relieved of his wallet and a sum of cash belonging to his employer, to which had been attached a paper writing in Crosby's own handwriting. Crosby, who was 78 years old at that time, was struck by the bandit in the stomach and knocked to his knees as the gunman left the store. Crosby described the person who robbed and assaulted him as a black male, six feet tall, weighing 180 to 190 pounds. He was unsure as to whether or not he described to the Sheriff the clothing the gunman was wearing, although the Sheriff stated the description he received from Crosby was that of a black man six feet tall, 175 to 180 pounds, dressed in a dark jacket with a lighter color pair of pants and wearing a cap. He even received from Mr. Crosby information as to the path the robber took upon leaving the scene of the crime. At the trial Crosby identified the paper writing, attached to the recovered money, as being in his handwriting.

Sergeant Boulter of the Maryland State Police, testified that at approximately 8:00 p. m. on November 9, 1968, he received a telephone call from Sheriff Vickers and was informed of the robbery. Boulter stated the Sheriff told him the robber was a 'colored male, approximately 5 feet 11 to 6 feet tall, 175 to 80 pounds. He was dressed in a dark jacket, dark pants and a cap, a light tan colored cap.' The Sergeant 'hurriedly' put on his uniform and proceeded to the scene of the holdup which was only 8/10 of a mile from his home. Enroute he passed a laundramat located only 3/10 of a mile from his residence. Sergeant Boulter said that immediately in front of the laundramat he observed the Appellant dressed in a dark jacket, dark pants, wearing a light tan cap and walking briskly along the laundramat parking lot. In Boulter's opinion Appellant 'was walking rather rapidly, in a furtive manner.' He apprehended the Appellant and in the course of the search of the Appellant's person found 'a number of rolls of coins' and 'pulled out rolls of money, that is paper money.' The Sergeant further testified that he saw Appellant knock the cap from his (Appellant's) own head, as well as a stocking mask. The mask was retrieved behind the police car door from which the Appellant alighted as he was taken into the State police office. Appellant, at the time of his apprehension, was carrying a 'six pack' of beer.

Robert W. Joiner, the chief of police of Rock Hall, testified that he found a pocketbook belonging to Crosby 'where this man (Appellant) was in my car. And there was a deep ditch there, and that is where this pocketbook was found.' He first saw the Appellant about 1/10 of a mile from the liquor store where the hold-up occurred, coming from a tavern, with the six cans of beer. He had Appellant get into his car, radioed a Mr. Simms, and asked Simms to contact the Sheriff. He said he thought he 'had the man that robbed the liquor store.' Previously he had received information relative to the robbery. Appellant got out of her car and started toward the laundramat. Sergeant Boulter by that time had arrived at the laundramat area and made the arrest. A paper bag was used by the gunman to carry the paper currency, as well as the coins. A paper bag was recovered from the Appellant.

Appellant, in his testimony, said that he had gone into Coleman's Bar where he bought the beer and a man whom he identified as 'Baltimore' gave him the paper bag. He found it to contain money which he put in his coat pocket. He denied all knowledge of the robbery. He stated he was in the liquor store an hour or so before the robbery where he bought 'straight whiskey.' He had at the time of the trial never seen or heard from 'Baltimore' since the night of November 9, 1968.

Prior to the actual trial, the Appellant's attorney filed a 'Motion to Suppress Evidence' and a 'Suggestion for Removal.' Both motions were denied. The Suggestion for Removal was augmented by three copies of the Kent County News. The first copy was dated November 12, 1968 and said on page 1: 'Rock Hall, Liquor Store Robbed at Gun-Point, Bandit-Suspect Captured by Police.' The second newspaper was dated November 13, 1968 and contained an article on the front page entitled: 'Man Held For Armed Robbery as Week-Long Crime Wave Hits.' The third and last paper was dated December 3, 1969. Printed on the front page was 'Rock Hall Liquor, Armed Robber Conviction Upset by Appellate Court,' the latter article having direct reference to Cleveland v. State, supra, and quoting in part Judge Orth's opinion delivered for this court.

The Motion to Suppress and the Suggestion of Removal were both heard in May of 1970.

On appeal to this court the Appellant raises three arguments:

1. The trial court abused its discretion in not removing the case.

2. The arresting officer did not have probable cause to arrest the Appellant and the articles taken from him incident to the arrest should not have been received in evidence.

3. The lower court committed reversible error in allowing the State to impeach the Appellant by introducing a prior conviction.

I

The Appellant's first contention is that the court should have granted his suggestion for removal inasmuch as he could not have a fair and impartial trial in Kent County because of the matters that appeared in the Kent County News, as above quoted. This case was tried for the second time on August 28, 1970, almost nine months after the last article appeared in the newspaper. In McLaughlin v State, 3 Md.App. 515, 240 A.2d 298 (1968), Judge Anderson, speaking for this court said 'The question of whether a non-capital criminal case should be removed to another jurisdiction is one which rests within the trial court's discretion. Maryland Constitution, Article IV, Sec. 8; Maryland Rules 542 a 1 and 738 b. However, the trial court's decision is reviewable on appeal for a determination of whether there has been an abuse of discretion. Seidman v. State, 230 Md. 305, 187 A.2d 109 (1962); Benton v. State, 1 Md.App. 647, 652, 232 A.2d 541 (1967).

The question before the court is whether the trial court abused its discretion in refusing the requested removal. The cases in this State hold that newspaper disclosures standing alone do not support a defendant's suggestion that such disclosures deny him a fair trial. Gray v. State, 224 Md. 308, 316, 167 A.2d 865 (1961) and cases cited.'

We conclude from the record before us that there was no abuse of discretion by the trial court. The questions by the trial court and by Appellant's counsel on voir dire adequately covered the subjects of freedom from prejudice and adverse newspaper publicity.

II

Appellant contends that the arresting officer did not have probable cause to arrest the Appellant and the articles seized from him were incident to an unlawful arrest so as to exclude their receipt into evidence.

The general rule is that a police officer may arrest, without a warrant, if he has probable cause to believe a felony has been committed and that the person arrested has committed it. Robinson v. State, 4 Md.App. 515, 522, 243 A.2d 879 (1968); Simms v. State, 4 Md.App. 160, 167, 242 A.2d 185 (1968); Boone v. State, 2 Md.App. 479, 481, 235 A.2d 567 (1967); Cleveland v. State, 8 Md.App. page 218, 259 A.2d 73, 82, supra.

We said of 'probable cause' in Cleveland 'The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction, but more evidence than that which would arouse a mere suspicion. Terrell v. State, 3 Md.App. 340, 239 A.2d 128. Only the probability, and not prima facie showing, of criminal activity is the standing for probable cause. Beck v Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142.'

Appellant relies heavily on the opinion of this court in his first appearance here. Cleveland v. State, supra. We said then:

'The evidence showed that the arresting officer had probable cause to believe that a felony had been committed. The question is whether the evidence before the trial court was sufficient to show that the arresting officer had probable cause to believe that the appellant committed the felony. This question must be considered in the light of what facts and circumstances, as shown by the evidence, were, at the time of the arrest, within the knowledge of the arresting officer, or of which he had reasonably trustworthy information. Information received by Boulter from the Sheriff would be reasonably trustworthy but other than that there had been a robbery the evidence did not disclose with any specificity what that information was. In fact it did not disclose what description of the robber the victim gave the Sheriff other than he was 'a negroe male approximately six feet-.' The arresting officer testified that his attention...