Conway v. State

• Citation: 289 A.2d 862,15 Md.App. 198
• Decision Date: 21 April 1972
• Docket Number: No. 434,434
• Parties: Marshall Edward CONWAY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 198

15 Md.App. 198

289 A.2d 862

Marshall Edward CONWAY v. STATE of Maryland.

No. 434.

Court of Special Appeals of Maryland.

April 21, 1972.

Certiorari Denied June 29, 1972.

[289 A.2d 863] Harold Buchman, Baltimore, for appellant.

Gary Melick, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and Peter D. Ward, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before MURPHY, C. J., and CARTER and GILBERT, JJ.

GILBERT, Judge.

Marshall Edward Conway, appellant, was convicted of murder in the first degree and two charges of assault with intent to murder, at a jury trial presided over by Judge Charles D. Harris, in the Criminal Court of Baltimore. Appellant was sentenced to life imprisonment for the murder conviction and a term of 15 years incarceration on each of the assault with intent to murder charges, to be served consecutively with the life imprisonment sentence.

In his appeal to this Court, the appellant attacks the judgment of the Criminal Court of Baltimore on a sexpartite basis. We shall consider each contention seriatim. He contends:

'1. The intra-departmental police photographic identification II. The prosecution violated the sequestration rule by, without the knowledge of the court or the accused, or with the consent of the court, consulting with a key witness the night before his appearance.

procedure, when appellant was already in custody, was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification warranting the exclusion of identification evidence by Officers Nolan and Welsh.

III. The prosecutor denied accused a fair trial by first persistently questioning a co-defendant (indicted but not tried) despite his claim to Fifth Amendment privilege, and then in closing argument claiming erroneously, without correction by the court, that the witness had 'spilled the beans.'

IV. The court below erred in not permitting appellant to argue his case before the jury even though he had permitted him to act as his own counsel.

V. The court below erred in refusing continuance to appellant who sought new counsel and in pressing him to trial with counsel who had conferred with him only one hour in a capital case.

VI. The court should have granted the motion for judgment of acquittal.'

THE FACTS

The unprovoked, brutal and senseless slaying of Officer Donald T. Sager, a 13 year veteran of the Baltimore City Police Department, and the simultaneous attempted murder of Officer Stanley Sierakowski, a 17 year police veteran, occurred on Friday the night of April 24, 1970. Both uniformed officers usually worked as partners in one marked patrol car, but on the night of the shooting they were assigned individually to patrol in separate marked police vehicles in order 'to give the people there better coverage.'

Shortly after 9:00 p. m., the two officers responded to a domestic complaint at 1201 Myrtle Avenue, received It was at this point in time that Officer Sierakowski observed 'at least three, I know it was more than two there, moving around a little.' He described the individuals as 'Negroes * * ales * * * all about 25 or so' and said they were 'joking around, moving around' in the vicinity of his patrol car parked nearby. As the group passed the patrol car in which Sager and Sierakowski were seated, 'one of them came over and come right next to the car, about three inches, * * *. He seemed to smile, and I nodded to him, and went back and * * * kept writing my report.' The group passed towards the rear of the car and owing to the fact that Officer Sierakowski 'could hear the conversation' he 'knew' that they had not crossed the street.

by Sager. Sierakowski arrived first and parked his vehicle. Sager soon pulled up, parked, and both officers proceeded to investigate the complaint. Sager took the complaint and 'about ten minutes' later both returned to Sager's car. While seated therein, the team was alerted via a radio call to a 'family thing' at the 900 block Argyle Avenue, about two and a half or three blocks away. They responded in Sager's car because 'he was pointed the right way.' A complaint was taken and the two officers returned to Myrtle Avenue and parked in front of 1201 Myrtle Avenue near the corner of Dolphin Street. Sager remained in the driver's seat while Sierakowski sat on 'the passenger's side to the right of him.' While in the midst of writing out their reports, the officers were interrupted by the woman who had earlier made the domestic complaint. They got out of the car, 'looked at the area,' saw no one, and returned to the car to finish their reports.

About two minutes after the group had passed the patrol car, the lady who had made the original complaint again tried to get the officers' attention. As he opened the door and began to alight, Officer Sierakowski 'heard a volley of shots,' looked over his car and 'saw a motion going from the back of the car towards the building side.' The officer testified that he 'heard the shots, and The fusillade of gunfire ceased and as Sierakowski lay grievously wounded in the gutter, wedged between the curb and Sager's vehicle, a man came walking towards him, stooped over and relieved the officer of his wristwatch, and then started to 'grab ahold' of his holster. 'He grabbed the bottom of the holster, * * * and I hollered out, 'No,' and I don't know whether I passed out or not, but the next thing I knew, he wasn't there and I started trying to get up.' Sierakowski then 'started reaching for the mike. It was difficult.' After his second or third attempt to reach the microphone Sierakowski noticed his partner, Officer Sager, who was 'bleeding from the face and from his nose, rather, and his mouth, and he was still breathing, * * *.' Officer Sager did not respond 'because he was gurgling while he was breathing; the blood was gurgling in his throat.' Finally, Sierakowski got a 'signal 13' distress message through.

I saw the fire coming out of the gun. * * * four slow fires. I was struck * * *. It was four bullets in the stomach, and both of my hands were shot, and my arm was broken.' Sierakowski surmised that the group which had seconds earlier passed the patrol car and the person or persons shooting at him and Officer Sager 'from the rear of the car' were one and the same because 'they just passed me, and there was no pause in the conversation.'

Officer Francis Frederick testified that he and Officer Billy R. Anderson, both of the Tactical Squad of the Baltimore Police Department, assigned to 'high crime areas,' heard a police distress signal over their radio at approximately 9;55 p. m. on the evening of April 24, 1970. They were on patrol at Argyle Avenue and Dolphin Street and it took only 15 or 20 seconds for them to arrive in front of 1201 Myrtle Avenue. Frederick alighted from his vehicle, approached the Sager vehicle and noticed 'Officer Sager slumped behind the wheel of the radio car.' Two ambulances were quickly summoned. Frederick observed that 'both windows on the radio car, left and right rear, had been shattered by gunfire.' Other officers began arriving Detective Charles Bruggerman of the Homicide Squad arrived at about 10:30 p. m. and began marking the evidence, 'circled where the evidence was found, and had photographs taken.' In toto Bruggerman found eight .45 caliber 'shell casings and two spent projectiles inside and near the exterior of the car.'

at the scene. Officer Frederick accompanied Sager to Provident Hospital where the latter was pronounced dead on arrival. An autopsy subsequently performed on Sager's body revealed that the shots which killed him were not fired at close range. Sager's gun 'was still in his holster. It had not been fired.' The autopsy report indicated that Sager died almost instanter.

Officer Raymond Norris, on duty nearby with his partner, overheard Sierakowski's statement, 'I have been shot,' on his radio and was at the scene in about a minute. He rendered what assistance he could to Sager and Sierakowski. While he proceeded to 'keep the area clear' he chanced to observe '.45 casings laying in the street and around the car, and on both sides of it, * * *.'

Officers Roger Nolan and James Welsh, assigned to the Tactical Squad, were patrolling the area of Pennsylvania and North Avenues, in an unmarked car and in plainclothes, when, at about 9:55 p. m., on the evening of April 24, 1970, they received a signal 13 police distress signal. On their way to the scene of the shooting, they 'got to the intersection of Myrtle and Fremont' and 'saw two males walking hurriedly from Myrtle Avenue across an old fire house to Fremont Avenue, they had gotten to this alley * * * which is known as, its a small street * * * called Smithson Street. We stopped two males at this point and told them of the incident, and more or less questioned them about their whereabouts.' The reason the officers stopped the two was because of 'information * * * received over the radio * * * that the males had been running north of Myrtle Avenue from the scene of the incident.' The two individuals were then patted down and placed in the police vehicle. Nolan and Welsh again continued towards the locus criminis.

When they got to the intersection of Fremont Avenue and Mosher Street, they 'observed a lone male walking north on the east side of Fremont Avenue' three quarters of a block from where they had stopped the other two males. Officer Nolan testified:

'Well, he was walking rather hurriedly, and the manner in which he appeared, * * *. It was very few people on the street at that time of night. He was dressed in a sweater and the temperature at that time was rather cold. The person looked to be flushed or excited, and, * * * as we pulled by him, he looked at us once or twice, * * * he more or less made jerky motions.'

The officers made a U-turn at Small Street and proceeded to block passage from the...