Franklin v. State

• Decision Date: 01 December 1976
• Docket Number: No. 1181,1181
• Citation: Franklin v. State, 366 A.2d 111, 33 Md.App. 690 (Md. App. 1976)
• Parties: Stephen FRANKLIN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 690

33 Md.App. 690

366 A.2d 111

Stephen FRANKLIN v.STATE of Maryland.

No. 1181.

Court of Special Appeals of Maryland.

Dec. 1, 1976.

Certiorari Granted Jan. 27, 1977.

Robert B. Levin, Baltimore, with whom were Frank, Bernstein, Conaway & Goldman, Baltimore, on the brief, for appellant.

Deborah K. Handel, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., Baltimore City and Dana Levitz, Asst. State's Atty., Baltimore City, on the brief, for appellee.

Argued before FREDERICK J. SINGLEY, Jr., ^*JAMES F. COUCH, Jr., ^** and ROBERT F. SWEENEY, ^*** JJ.

SWEENEY, Judge.

On September 8, 1975, Stephen Franklin was convicted of attempted robbery with a dangerous and deadly weapon by the Honorable Paul A. Dorf, sitting without a jury in the Criminal Court of Baltimore.He was sentenced to 20 years incarceration.

Franklin now attacks his conviction, asserting that his constitutional rights were infringed because the trial court failed to make a preliminary or subsequent determination of the voluntariness or trustworthiness of certain extrajudicial statements attributed to him, which were introduced by the State for impeachment purposes.Franklin also alleges that the court erred in permitting a police officer to testify as to his silence when he was asked certain questions by the officer.

The State's primary witness was a taxicab driver, Jarrett Christian, who testified that he had picked up the Appellant and two young girls at Pennsylvania Avenue and Laurens Street in Baltimore City at approximately 9:30 p.m. on December 19, 1974.Christian testified that the females left the cab at Ashburton Street and North Avenue, and that the Appellant then directed him to drive to a certain address on Spaulding Avenue.When they arrived at that address, according to Mr. Christian, the passenger got out of the cab and knocked on several doors and then returned to the cab, walking around in front of it with his hands in his pockets and saying to him 'you know what this is . . . give it up.'Christian stated that he responded by attempting to flee, driving his cab up an alley at a high rate of speed, striking a pole as he did so.While driving away, he heard several gun shots and saw that the windshield of his taxi had been struck by a bullet.Christian then jumped out of the cab and fired a pistol at his assailant, but did not know if any of the bullets struck him.He notified police of the attempted robbery, and after two policemen came to the scene and spoke to him, drove his cab back to his garage.On his arrival at the garage, he was advised that two detectives wanted to see him at Sinai Hospital.He arrived at the hospital, he said, about an hour after the shooting incident and there he identified the Appellant, who was being treated for a gun shot wound, as the man who had been a passenger in his cab and who had attempted to rob him.In court, on the day of trial, Mr. Christian identified the Appellant as a person who 'looked like' his passenger on the day of the shooting.No objection was made to the admissibility of this in-court identification.

The State's second and last witness in its case in chief was Detective John Grimes of the Baltimore City Police Department, who testified that on the date in question he received a call directing him to go to the scene of a taxicab holdup in the 3000 block of Garrison Avenue.On arriving there he found the cab driver, Mr. Christian, who made a report to him Grimes stated that he then canvassed the area for possible suspects, without success.Approximately an hour later, he heard a call over the police radio advising that a man was being treated for a gun shot wound at Siani Hospital.He went to the hospital where, he stated, he'observed the defendant here sitting in the emergency room, being treated for a gun shot wound of the left shoulder.'He said the Appellant was then dressed in hospital clothing, with his own clothing piled up nearby.Grimes testified further that he determined that none of that clothing, which consisted of a three-quarter length brown leather jacket, and a shirt, contained any bullet holes.

During Grimes testimony he attempted to describe his conversation with the Appellant at the hospital, and the following colloquy ensued:

'Q What did you do after viewing the Defendant and looking at his clothes?

A I interviewed the Defendant at that time.Not as a Defendant.I asked him what-how he got shot.

Q And what did he say?

A He stated that he-

MR. MEYERS: Objection.

THE COURT: Is there any objection?What's the purpose of the objection, the reason for the objection?

MR. MEYERS: Well, Your Honor, there has been no testimony that the Defendant was advised of his rights before the interrogation.

THE COURT: No testimony that it is an interrogation.

MR. MEYERS: Well, he is asking questions, and he hasn't advised the Defendanthe has a right to counsel and so on.

THE COURT: Well, there has been no objection as to an oral confession.

MR. MEYERS: Well, here he is getting into a statement made by the Defendant.I don't believe what it is going to be, but I think-

MR. LEWIS: Your Honor-

THE COURT: I'll let you qualify at this point of time, not qualify as to whether it's custodial interrogation or not.

MR. LEWIS: To avoid the problem, we will withdraw the question at this time.

THE COURT: Routine investigation, not custodial interrogation.All right.Question withdrawn.'

Grimes then testified that after talking to the Appellant, he called communications and asked to have the cab driver come to the hospital.He stated that when Mr. Christian arrived at the hospital he'observed the Defendant and stated, that is the man that tried to hold me up'.Grimes testified that he then went to an address at 4900 Queensberry Avenue, where he was given certain articles of clothing by the Appellant's sister.He identified those articles as a jacket and a sweater and said that each contained bullet holes.He testified further that he examined Mr. Christian's taxicab and found several 'indentations' on the cab: one in the windshield, one in the side and one in the rear.After introducing certain medical records of the Appellant from Sinai Hospital, the State rested its case-in-chief.

Appellant then made a motion for a judgment of acquittal, which was denied, after which the Appellant elected to testify in his own defense.In his direct testimony, Franklin stated that on the evening in question he was on Pennsylvania Avenue preparing to go home because he felt 'kind of sick'.'I take epileptic medicine, and I was slightly intoxicated, just a little bit.'He said he got into a conversation with two girls, told them he had only 'a dollar and something', and that they offered to take him home by cab.In the 2700 block of North Avenue, he said, the girls got out of the cab 'giggling, you know, so I'm stuck in the cab'.He said he told the cab driver to keep going, in the hope that he would see someone who could give him the cab fare, but was unsuccessful in that effort.He then told the driver to take him to a friend's home on Spaulding Avenue, but no one answered at that address.He testified that when he went back to the cab, the driver pointed a gun at him:

'A.He had a pistol at my face, you know.Right there I panicked, because I was shot twice.This is the third time, you know.I ran down the alley.About a second later I heard five shots.I was hit with one of them.I scared.I stopped at Garrison.He came through with the cab, and then he stopped, said, 'Come out behind them bushes, I see you.'Is it all right if I say what he said?'You behind them bushes, you black mother-fucker, come out.'So I came out.'I got one dollar, something.I live right around the corner, Queensberry, which I did, you know.You get around the corner, you get the rest of your money.'He said, 'No, just throw the dollar across the hood, or I'll kill you.'You know.So I threw the dollar across the hood.My sister take me to the hospital.I took off the bloody shirt I had on, you know, and then I put another on, and my sister threw a leather coat, she put that on.I got down to the hospital and I was treated.Then he came in.The cab driver came in.He said, 'Is that the one?'He said, 'yeah,' and ran right back out, you know.The officer right there he questioned me where my pistol at, but I don't own no gun.That's how everything went, you know.

Q.Did you have a pistol with you that night?

A.No, I don't own no pistol.

Q.Did you attempt to hold up the cab driver?

A.No.

On cross-examination, Franklin testified concerning his interrogation by Det. Grimes:

'Q.Now, when the officers came to see you at the hospital, what did you tell them happened?

A.I told them I got shot.

Q.And, how did you get shot?

A.Cab driver shot me.

Q. Didn't you tell them that you had gotten in an argument down at Park Circle and Park Heights, and as a result of that, you had been shot?

A.I don't know nobody there.

Q.So what exactly do you recall telling the officer?

A.That I got shot by a cab driver.

Q.And did you give a reason why you were shot?

A.I told then everything like I am telling you all.

Q.Which is-repeat again what you told the officer, please.

A.Right.

Q.Repeat it.

A.I told them I got shot by a cab driver.You want me to repeat my statement as far as getting out the cab and running stuff?

Q.It's your testimony then that you did not tell the officer that you were involved in a fight, someone shot you as a result of a fight?

A.Yes, sir.'

After Franklin's testimony, the defense rested and the State then recalled Det. Grimes in rebuttal.Grimes testified as follows:

'Q.Detective Grimes, when-you previously testified that you went to the hospital and spoke with the defendant about this crime.How did he say it occurred the first time you spoke with him?

A.I asked him how he got shot.

MR. MEYERS: Objection.

THE COURT: Overruled.I'll let...