Coleman v. State

• Decision Date: 17 June 1968
• Docket Number: No. 233,233
• Citation: 243 A.2d 24,4 Md.App. 386
• Parties: Albert George COLEMAN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 386

4 Md.App. 386

243 A.2d 24

Albert George COLEMAN v. STATE of Maryland.

No. 233.

Court of Special Appeals of Maryland.

June 17, 1968.

James W. McAllister, Baltimore, for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., Baltimore, on brief with Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, Barrett Freedlander, Asst. State's Atty. for Baltimore City, Baltimore, for appellee.

Presented to MURPHY, C. J., and MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

Appellant was convicted on July 17, 1967 in the Criminal Court of Baltimore by Judge Joseph L. Carter, sitting without a jury, under three separate indictments charging (1) unauthorized use of an automobile, (2) storehousebreaking, and (3) common law assault. He was sentenced to serve a term of ten years on the assault offense and two years each on the unauthorized use and storehousebreaking charges, to run concurrently with the assault term. The only question presented on this appeal is whether the evidence was sufficient to support appellant's conviction for common law assault.

There was evidence adduced at the trial which showed that the assault victim Bedellia McNeal, a fifty-three year old grandmother, was under the influence of alcohol when she left her daughter's home at 5:00 p. m. on December 8, 1966. Shortly thereafter, the victim's daughter was advised that her mother had been taken to Johns Hopkins Hospital in a badly beaten condition.

The victim testified that she was unable to recall any of the events surrounding the assault since she had been 'kind of intoxicated' on the day of the crime. The evidence showed that as a result of the beating, Mrs. McNeal's left eye was 'hanging' from its socket and ultimately had to be removed; that she also sustained damage to her right eye, was bruised about the face and head, suffered internal bleeding and some broken ribs.

Officer Robert Rubin of the Baltimore City Police Department testified that at 6:20 p. m. on December 8, 1966, he responded to a call where he observed Mrs. McNeal in an unconscious condition, lying nude in the alley which ran alongside of 1403 East Madison Street, this being the address where the victim resided. Rubin testified that Mrs. McNeal was bleeding from the face and head and her clothing had been ripped and strewn about the area.

Randolph Crouell, a nine year old fourth grade school boy, was the State's principal witness. He testified that it was dark on December 8, 1966 when he and his friend Keith Brown saw three boys approach a lady who was sitting in the front of a house on Madison Street; that one of the boys asked her for a match, and after the lady said she didn't have a match, 'the boy drug her in the alley,' at which time 'one boy was lighting a cigarette and another boy had a flashlight and he put it up on the side of a little pipe and then went behind the little wall, and me and the boy named Keith, we seen the boys beating the woman.' The witness further testified that it was 'a boy in a blue coat, and another boy' who dragged the lady into the alley; that neither of these boys was the appellant; that he knew the appellant as Sonny; that the appellant was present when the boys approached the victim but he 'didn't do nothing, but he was standing there'; that when 'the boy in the blue coat' dragged the victim into the alley, appellant 'was lighting a cigarette in the alley, and he had a flashlight in his hand'; and that appellant put the flashlight 'up in the top of a pipe,' which was 'on top of the wall.' The witness further testified that he made these observations by the light of the flashlight and from 'behind the wall' and that he, presumably referring to the appellant and his flashlight, was 'shining it down.'

The witness Crouell did not specifically state during his testimony that he saw the appellant beat the victim, nor was he asked to identify the victim as Mrs. McNeal. During the course of his testimony on direct examination, the State claimed to have been surprised by Crouell's testimony and an unreported bench conference then ensued. It cannot, however, be gleaned from the record just how or by what testimony of the witness the State was surprised. Appellant did not cross-examine Crouell.

Keith Brown, also nine years of age and in the third grade, was then called as a witness by the State. He testified that he was with Randolph Crouell 'behind the wall,' in the alley, in the night, and saw appellant kick a lady and remove her clothing. At variance with this testimony, the witness thereafter stated that he didn't see the appellant on the night of the crime, but recognized him from his 'deep voice,' despite the fact that he had not known appellant previously and that appellant said nothing on the night of the offense. The witness further testified that Randolph Crouell told him what the appellant had done, but that he personally observed the appellant take the clothing off the lady. He was not asked to, nor did he, identify Mrs. McNeal as the victim of the assault.

There was evidence showing that some three months after the crime appellant was interrogated by police, apparently with reference to the assault on Mrs. McNeal, at which time he orally admitted that he was 'in the alley' but that 'I didn't do nothing'; that 'I was smoking a cigarett.'

The sixteen year old appellant did not testify on his own behalf. The trial judge, in finding appellant guilty of assault, stated that he did so without consideration of the testimony of Keith Brown.

It is well settled that the presence of the accused at the immediate and exact spot where a crime is in the process of being committed is a very important element that may be considered in determining guilt. Johnson v. State, 227 Md. 159, 175 A.2d 380; Tasco v. State, 223 Md. 503, 165 A.2d 456; Spencer v. State, 1 Md.App. 264, 229 A.2d 151. Equally well settled is the proposition that such presence, standing alone, is insufficient to establish participation in the perpetration of the crime. Watson v. State, 208 Md. 210, 117 A.2d 549; Williams v. State, 3 Md.App. 58, 237 A.2d 822; Willis v. State, 2 Md.App. 662, 236 A.2d 430; Neil v. State, 2 Md.App. 659, 236 A.2d 754; Pettis v. State, 2 Md.App. 651, 236 A.2d 429. And the fact that a person witnesses a crime and makes no objection to its commission, and does not notify the police, does not, of...