Davenport v. State
| Decision Date | 27 May 1969 |
| Docket Number | No. 323,323 |
| Citation | 253 A.2d 768,7 Md.App. 89 |
| Parties | Bernard K. DAVENPORT v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Rolf A. Quisgard, Jr., Towson, for appellant.
Bernard L. Silbert, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, J., and Robert C. Stewart, State's Atty., and Asst. State's Atty. for Baltimore City, respectively, on brief, for appellee.
Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
Appellant Bernard K. Davenport and his codefendant Lena Williams were jointly tried and convicted by the court sitting without a jury of two armed robberies committed upon taxicab drivers. In addition, appellant was found guilty of unlawfully possessing narcotics and his codefendant was separately found guilty of committing the armed robbery of a taxicab driver on February 21, 1968. Each was sentenced to consecutive five-year terms on each of their three convictions, to be served under the jurisdiction of the Department of Correction. On this appeal from his convictions, the appellant Davenport contends that because the same attorney represented both him and his codefendant Williams at the trial and because there was a conflict of interest between their respective positions, he was denied the effective assistance of counsel.
The record discloses that the trial was begun on July 22, 1968 with William Goldstein appearing as privately retained counsel for both the appellant and his codefendant Williams. At the outset of the proceedings, Goldstein informed the court that while he had received notice that the codefendant's case was ready for trial, he had received no such notice with respect to appellant's case. To this the court clerk replied that notice of appellant's case had not been sent because no appearance of counsel had been entered on appellant's behalf. At this point, the court suggested that the State proceed with the case against Williams, but the State's Attorney countered by stating that he was ready to proceed with the cases against both appellant and Williams-that it was Goldstein's responsibility to have checked the docket and to have ascertained therefrom that both cases were set for joint trial on the same date. At the court's suggestion, counsel for the parties then conferred, as a result of which it was agreed to proceed with a joint trial on all the charges, with the understanding that appellant be afforded additional time at the conclusion of the State's case to locate witnesses on his behalf, if necessary. Against this background, appellant was arraigned and the codefendant was rearraigned, each entering pleas of not guilty to all charges, and electing trial by court.
At the trial, the State adduced evidence which showed that three taxicab drivers had been robbed-the first on February 21, 1968 by a woman, and thereafter on March 20 and 25, 1968 by a woman and a man, after they had driven their passengers to their destination in the Cherry Hill section of Baltimore City. Each robbery had been perpetrated at knifepoint, and in each case the victims had been able to give the police a description of the robbers, including the fact that the woman had worn a gold-colored coat. The March 25 robbery had occurred when the codefendant (who had been identified at a pretrial lineup and was also identified at trial), arrived by taxicab in front of apartment buildings at 1002 and 1004 Shellbanks Court and went inside 1004 Shellbanks Court for the declared purpose of obtaining the fare therein, only to return in the company of the appellant (who was identified at the preliminary hearing and was also identified at trial), and demanded the taxicab driver's money. Appellant and codefendant Williams were also identified at the trial as the robbers by the victim of the March 20 robbery-an extrajudicial identification of each having also been made by the victim.
Police Officer John H. Hennessey testified that on March 27, 1968 he went to the codefendant's apartment at 1002 Shellbanks Court for the purpose of investigating a Community Relations Department Complaint of child beating and juvenile narcotics use at those premises; that upon speaking with the codefendant, he observed that she fitted the description on the wanted suspects list of the woman sought for the recent series of taxicab robberies in the area; that he left her apartment to return to his patrol car and check the description on the wanted suspects list, and soon thereafter she emerged from the bhilding wearing a gold-colored coat; and that he placed her under arrest and took her to the police station where she was charged with the taxicab robberies and incarcerated.
Officer Hennessey testified that when the codefendant was arrested she had refused to speak with the police; that she was informed that she was going to be placed in a lineup the next day and was permitted to telephone her attorney; that the next day he (Hennessey) stopped by her cell to inquire whether she had requested her attorney to be present at the lineup, and she replied no, but that she was willing to participate in it without her attorney being present, and that now she wanted to speak with the police. Officer Hennessey stated that she then informed him that 'she had committed four cab holdups' in the 'Cherry Hill area' with the aid of 'a brown-handled butcher knife' and that 'Bernard Davenport was with her.' Goldstein promptly moved to strike anything in the codefendant's statement 'in reference to Mr. Davenport,' and the court responded that 'I will strike it as to Davenport and also note in the record that there has been no request for separate trials in this case, but the reference to Davenport is stricken.' Officer Hennessey testified that Williams revealed no further detail to the police when she made that statement. He also stated that '(o)n the basis of the information I received from Mrs. Williams, I obtained a warrant for Bernard Davenport,' and he was arrested pursuant to it, at which time a search of his person uncovered 32 capsules containing heroin.
Goldstein cross-examined the officer at some length as to the circumstances before and after the codefendant made her statement to the police. The only questioning concerning the content of her statement was as follows:
'Q. * * * Now, you say you picked Mr. Davenport up on a warrant, is that correct?
A. That's correct.
Q. And this warrant was based on what Mrs. Williams told you?
A. On the information received from Mrs. Williams, correct.'
At the completion of the cross-examination of Officer Hennessey, the appellant asked the trial judge, 'May I have a word with you, please,' to which the court replied, 'You have to speak to your lawyer and he will advise you.'
Upon completion of the State's case, the codefendant elected to testify. She categorically denied any participation in or knowledge of the taxicab robberies. While admitting that she had previously been acquainted with the appellant, she denied having been with him on the days when the robberies had occurred. She stated that she had never told the police that she had participated in robberies, but that if the officer said that she made the statement that he testified to, '* * * I must have been having delusions because I was having a withdrawal of drugs, off of drugs,' inferring that the content of her statement was untrue.
The trial was then continued until July 26 to permit appellant time to locate an alibi witness. Upon resumption of the proceeding, the court noted that it had received a letter from the appellant in the interim to the effect that he had asked Goldstein to obtain a separate jury trial for him and to make certain motions on his behalf, none of which he had done. Because of these alleged omissions he wanted the assistance of other counsel and his lack of further finances required that any new counsel be court-appointed. This letter, and copies of two other letters which appellant had purportedly sent to Goldstein when he was awaiting trial were made part of the record by the court. One of the letters, dated May 21, 1968, contained the following language:
The other letter was dated July 1, 1968 and requested Goldstein to '* * * file for me a 'Subpoena Duces Tecum," but made no further mention of a severance or jury trial.
The court then inquired whether '* * * the reasons that I have stated which seem to be the reasons in your correspondence that you sent me, are they the reasons that you are asking for another lawyer,' namely '(y)ou wanted a separate trial; you...
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