Forrester v. State

• Decision Date: 20 February 1961
• Docket Number: No. 138,138
• Citation: 224 Md. 337,167 A.2d 878
• Parties: Clarence O. FORRESTER v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 337

224 Md. 337

167 A.2d 878

Clarence O. FORRESTER v. STATE of Maryland.

No. 138.

Court of Appeals of Maryland.

Feb. 20, 1961.

Bernard J. Flynn, Baltimore, for appellant.

Clayton A. Dietrich, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Saul A. Harris and Joseph G. Koutz, State's Atty. and Deputy State's Atty., respectively, for Baltimore City, Baltimore, on the brief), for appellee.

Before HENDERSON, HAMMOND, PRESCOTT, HORNEY, and MARBURY, JJ.

PRESCOTT, Judge.

The appellant, Clarence O. Forrester, was a member of the Baltimore City Police Department for many years. Starting at the bottom of the ladder, he rose through the ranks until he occupied the position of an Inspector. After being jointly indicted with one Hyman Goldstein, a Lieutenant of said Police Department, he was tried and convicted of malfeasance in office by a judge of the Criminal Court of Baltimore, sitting without a jury, and sentenced to eighteen months' confinement in the House of Correction. From his said conviction and sentence, he has appealed.

Specifically, the indictment charged him with having wilfully disregarded his duties as Inspector by having suppressed, withheld and misrepresented facts relating to a case then pending before the Criminal Court of Baltimore, said case being that of the State v. Phyllis Wright, and by having encouraged, permitted, allowed and otherwise assisted the said Phyllis Wright to commit acts of adultery, prostitution and similar offenses.

Although the record is quite voluminous, it would serve no useful purpose to set forth the lurid details of the case at great length, in view of its posture as it reaches us. The trial court filed a long, well-considered opinion, which disposed of many of the controversial aspects of the matter. The appellant now raises five questions, none of which is difficult to answer.

The State adduced evidence tending to establish the following facts: The appellant and his codefendant, Goldstein, both married men, participated, on September 26, 1956, in a raid upon the premises occupied by Phyllis Wright. On November 7, 1956, ¹ she pleaded guilty before Judge Mason of maintaining a disorderly house and prostitution. Judge Mason imposed sentence, suspended it, and placed her on probation.

Shortly after her conviction, Phyllis Wright met one Albert Weinstein, a close friend of the appellant and Goldstein. Weinstein introduced her to Goldstein and Forrester. Soon a furtive, clandestine agreement was entered into by the three men and Phyllis Wright: in return for their assistance and protection, they would receive sexual gratification from her. To this end, the three men set her up in an apartment, for which they paid $120 rent per month. They also gave her groceries, purchased furniture and clothing for her, had a telephone installed, and arranged for her medical treatment. Several parties were held at the apartment. On one occasion, the three men took a trip with her and one Rhoda Bosley to a night club in Washington, returning to the apartment at about 2:00 a. m. There was testimony to the effect that Phyllis Wright had sexual relations with each of the three men on numerous occasions, and the trial judge found this to be a fact. In addition, the judge also found that sexual relations were had between other men and other women, at the apartment in the presence of the appellant.

The appellant denied that he ever had sexual relations with Phyllis Wright. He stated his reasons for his association with her were that he was setting up police headquarters (at her apartment) in the northwestern section of the City, where some well-known criminals were beginning to operate, and that he was receiving information from her relative to an unsolved famous murder case--reasons that failed to impress the trial judge.

On December 28, 1956, the appellant and Goldstein went to the chambers of Judge Mason, and succeeded in having Phyllis Wright's probation rescinded.

With this brief summary of the general background of the case, we proceed to the specific questions raised by the appellant.

I.

He first claims that 'the trial court erred in permitting the witness, Phyllis Wright, to testify * * * without first advising her of her rights against self-incrimination,' and does not cite a single authority to support the proposition. In addition, the motion, as actually made, requested that the witness 'be required to sign a waiver of prosecution on the ground that if she testifies to anything she may be convicted for that she waives her right as to immunity.' The court overruled this motion, but stated that if any questions were asked the witness that might incriminate her, which were not outlawed by limitations, he would inform her of her rights against self-incrimination.

We recently had occasion to go rather thoroughly into the subject of the admissibility (over objection by the defendant) of the testimony of a witness that possibly would criminate the witness, in Butz v. State, 221 Md. 68, 156 A.2d 423. After reviewing the Maryland decisions upon the subject and the authorities elsewhere, we held that the privilege against self-crimination is a personal one and must be asserted by the witness, as the privilege belongs to the witness and not to the defendant; and the testimony of a witness, who has a proper claim of privilege, is not subject to objection on the ground of privilege at the instance of the accused, but is competent evidence and admissible against him, if material. And the Court stated in Raymond v. State, 195 Md. 126, 129, 72 A.2d 711, that it is no right of an accused, when an accomplice (we do not hold in the instant case that Phyllis Wright was an accomplice of the appellant) is called as a witness against him, to have that accomplice informed of his constitutional right to claim immunity from testifying on the ground that such testimony might incriminate the witness. See also 8 Wigmore, Evidence (3rd Ed.), Secs. 2196, 2269 and 2270. We find no error in this ruling of the trial court.

II.

Phyllis Wright testified that she had sexual relations with Goldstein at her apartment before her trial. The appellant contends this testimony was irrelevant and its admission constituted reversible error, because the acts took place out of his presence. Although the record does not make it perfectly clear that this testimony was objected to, we shall assume that it was. We find it unnecessary to decide the question, for the same witness testified, without objection, on, at least, two subsequent occasions to the same fact. In State Roads Comm. v. Bare, 220 Md. 91, 94, 151 A.2d 154, we called attention to the provisions of Maryland Rule 522(d)(2), and stated that a long line of decisions in Maryland had established the rule that it is not reversible error to overrule an objection to inadmissible testimony if the witness had previously testified to the same effect without objection, and the same rule applies when the inadmissible testimony is admitted without objection after a previous objection and an adverse ruling on the objection. And we gave the reasons for the rule. Hence, if we assume without deciding that the evidence was inadmissible, any objection to its admission was waived by its subsequent admission without objection.

III.

The appellant's third contention has two thrusts: (a) that the court erred in refusing to grant his motion for a directed verdict at the close of the State's case, and (b) in finding him guilty as the only testimony produced on behalf of the State that implicated him 'in any manner that could be considered a violation under the indictment was the testimony of Phyllis Wright, who was an accomplice.'

(a).

When Forrester offered evidence after his motion for a directed verdict was denied at the close of the State's case, he had a choice as to his course of procedure. He could have declined to offer any additional evidence, in which event the sufficiency of the evidence to justify and support a conviction would have been weighed and determined upon the State's evidence, alone. On the other hand, he had a right to adduce evidence in his own behalf, which he did, and he thereby withdrew his motion, Maryland Rule 741(b), which simply means that in weighing the sufficiency of the evidence to convict, the trial court considers all of the evidence produced by both parties, and not that produced by the State, alone. Elliott v. State, 215 Md. 152, 159, 137 A.2d 130. And the same thing applies, in the event of an appeal, when the Court of Appeals is called upon to determine the sufficiency of the evidence to support a finding of guilt by the trial court. As the case was tried by the court, sitting without a jury, the appellant's failure to renew the motion at the close of all the evidence does not preclude a review upon both the law and the evidence, Maryland Rule 741(c), Elliott v. State, supra; hence we must consider and determine (b).

(b).

This contention, insofar as it claims that Phyllis Wright was an accomplice of Forrester seems to be raised here for the first time. The original motion was based upon the alleged insufficiency of the claimed-to-be uncorroborated testimony 'of two convicted prostitutes.' At this point, the appellant does not urge the general insufficiency of the evidence to support a finding of guilt, but contends that the testimony of Phyllis Wright, who was an accomplice of Forrester, was not corroborated; consequently his conviction was not warranted, and should not be permitted to stand. It may be conceded that a person accused of crime may not be convicted on the uncorroborated testimony of an accomplice. Watson v. State, 208 Md. 210, 217, 117 A.2d 549. Also, we may assume, without deciding, that Phyllis Wright was an accomplice of the appellant, ² and still there was, we think, clearly sufficient corroboration of her testimony to sustain a finding of guilt. When an accomplice's testimony is corroborated, 'too...