Hartley v. State

• Decision Date: 01 July 1968
• Docket Number: No. 27,27
• Citation: 4 Md.App. 450,243 A.2d 665
• Parties: John Marshall HARTLEY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 450

4 Md.App. 450

243 A.2d 665

John Marshall HARTLEY v. STATE of Maryland.

No. 27.

Court of Special Appeals of Maryland.

July 1, 1968.

G. Denmead LeViness, Baltimore, for appellant.

Dickee M. Howard, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and I. Elliott Goldberg, 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.

ANDERSON, Judge.

In March of 1961, appellant, John Marshall Hartley, was jointly indicted with his wife under five indictments charging them with armed robbery and allied counts. On April 28, 1961, appellant pleaded guilty before Judge Joseph L. Carter in the Criminal Court of Baltimore under each of the first counts of Indictments Nos. 991 through 995, charging armed robbery of several loan offices. He was sentenced to a term of twenty years imprisonment in the penitentiary for each conviction, the first two terms to run consecutively and the other three to run concurrently with the second one. The cases against his wife were stetted.

On January 31, 1964, Hartley filed a petition under the Uniform Post Conviction Procedure Act. He contended, among other things, that he had been denied the right to appeal his 1961 convictions and his pleas of guilty to the charges in the several indictments had been involuntarily made. A hearing was held before Judge Edwin Harlan on May 5, 1964. Judge Harlan granted Hartley a delayed appeal after finding that his attempt to appeal was delayed by circumstances beyond his control, but made no factual findings or conclusions of law as to his other contentions. The Court of Appeals therefore remanded the case back to the Criminal Court of Baltimore, without affirmance or reversal, for an evidentiary hearing and a factual finding as to whether the pleas of guilty made by Hartley on April 28, 1961 were voluntarily made. Hartley v. State, 238 Md. 165, 208 A.2d 72.

On remand Judge Carter heard the case and on October 19, 1965, filed an opinion granting the appellant Hartley a new trial. However, before the appellant could be retried, the Court of Appeals handed down its decision in Schowgurow v. State, 240 Md. 121, 213 A.2d 475. As a result of the Schowgurow decision, new indictments were returned against appellant, same being indictments Nos. 6398 through 6402, each charging him with robbery with a dangerous and deadly weapon and allied counts. He entered pleas of not guilty by reason of insanity at the time of the commission of the crime, and not guilty, to each indictment.

On November 14, 1966, appellant was tried in the Criminal Court of Baltimore by Judge James A. Perrott, sitting without a jury, and was convicted under the first count (robbery with a dangerous and deadly weapon) of indictments Nos. 6398, 6400, 6401 and 6402, and a Motion for Judgment of Acquittal was granted in indictment No. 6399 when the State was unable to produce its chief witness. He was sentenced to a term of twenty years in indictment No. 6398 and to a term of ten years in each of the other three indictments (Nos. 6400, 6401 and 6402), to run consecutively with the sentence imposed in indictment No. 6398 and with each preceding indictment, for a total of fifty years, to be served in the Maryland Penitentiary, sentence in indictment No. 6398 to begin as of March 13, 1961.

From his convictions, he now appeals to this Court.

The State's first witness was Lewis H. McKnight, Jr., who testified that on November 28, 1960 he was employed by the State Finance Company on Harford Road in Baltimore. On that date, at approximately 5:30 o'clock p. m., as he was preparing to close the office, he was called to the counter by the cashier. There he was faced by the appellant, who produced an automatic revolver, pointed it in his face, and demanded the money. McKnight gave him all the money in the cash drawer amounting to approximately $260.00. Whereupon appellant, after warning McKnight and the cashier not to do anything, left. He positively identified appellant in the courtroom as the robber, and had previously identified appellant in a police line-up. This was the substance of the testimony in indictment No. 6400.

The second witness, Mrs. Carole N. Ferrara (formerly Carole N. Lugenbeel), testified that on November 11, 1960, she was employed at the Circle Credit Company in Baltimore as a 'Girl Friday'. The company's office was located on the second floor at 1059 Hillen Street. On that date, about 4:30 o'clock p. m., appellant entered the office, pulled a gun out of his pocket, told her this was a hold-up and to give him the money. She gave him all the money in the cash drawer amounting to $50.96. Whereupon, after cautioning her, he turned and left. She made a positive identification of appellant in the courtroom, and had previously identified him in a police line-up. This was the substance of the testimony in indictment No. 6938.

The same witness, Mrs. Ferrara, further testified that on November 23, 1960 she was working at the Circle Credit Company and that at approximately 11:30 o'clock a. m. appellant entered the office and came behind the counter where she was alone. The witness recognized appellant from the previous hold-up, and as he partially removed his gun from his pocket, she told him to put it back in his pocket. She then gave him the money amounting to approximately $100.00. He made her open the safe in which there was a small amount of cash. Before he left, he made her enter the bathroom, closed the door and left. She identified appellant in court as the robber, and had previously identified him in a police line-up. This was the substance of the testimony in indictment No. 6402.

The State next produced Raymond F. Delahanty, who testified that he was the manager of the Aetna Finance Company and on December 5, 1960, he was at the Highlandtown office located at Eastern Avenue and Conkling Street in Baltimore. About 5:45 o'clock p. m., he received a buzz to come to the front office. There he found appellant behind the counter and the cashier, Jo Ann Fedi, braced against the wall. Appellant was armed with a pistol, which he pointed at him and told him to 'stand right there.' The cash drawer was open and appellant grabbed up all the money amounting to between $670 and $700. After he had cleaned out the drawer, he asked if there was any more money. Delahanty told him, 'that is it.' Whereupon, he told everyone to stay inside and, as he passed Delahanty, he said, 'Especially you.' He then left by the only entrance leading to the stairs on Conkling Street. Appellant as positively identified by the witness in the courtroom. He had previously identified appellant at the preliminary hearing. He did not attend the line-up. The State's last witness was Bryan Bruck who, on December 5, 1960, was working in the collection office of the Aetna Finance Company at the time of the hold-up making phone calls. At that time he was struck on the head by a gun and as he stood up, there was a man facing him with a gun. He testified as to the details of the robbery, but was unable to make a positive courtroom identification. This was the substance of the testimony in indictment No. 6401.

Appellant raises eight contentions on his appeal.

1. That the State of Maryland subjected appellant to double jeopardy and thus violated his constitutional rights.

2. That the court should have suppressed all evidence (witness identification) because it was illegally obtained by an illegal arrest; and should have granted his pre-trial motion for declaration of an illegal arrest.

3. The court should have excluded all evidence because it was obtained during an unreasonable delay between the arrest and preliminary hearing in violation of the Mallory Rule and his federal constitutional rights.

4. That the court should have dismissed the cases because the appellant could not be given a fair trial because of Rights violations of the federal constitution.

5. That the court should have dismissed the indictments because the Criminal Court of Baltimore lacked jurisdiction, and the indictments were invalid because of Federal Constitutional Rights violations.

6. That the appellant failed to receive a fair and speedy trial as guaranteed by the Constitution.

7. That the court should have granted appellant's Motion for Judgment of Acquittal under Indictment No. 6401.

8. That the court erred by imposing a fifty year sentence on four indictments convictions, when at his original trial in 1961 the sentence was forty years for all five indictments and that this was a violation of the 14th Amendment of the United States Constitution.

Appellant's first contention is that he was placed in double jeopardy as a result of his retrial and this was a violation of his constitutional rights.

We find no merit to this contention. It has been repeatedly held in this State that the rule of double jeopardy is not a constitutional right but exists here as a matter of common law. Robb v. State, 190 Md. 641, 60 A.2d 211 (1948); Ruckle v. State, 230 Md. 580, 187 A.2d 836 (1963). The double jeopardy protection of the Fifth Amendment is not transmitted to the States through the Fourteenth Amendment. Wampler v. Warden, 231 Md. 639, 191 A.2d 594 (1963); Nixon v. Director, 1 Md.App. 14, 226 A.2d 352 (1967). In the event of a finding that the trial court had committed error, a new trial may be granted without infringing upon the common law rule against double jeopardy. Ruckle v. State, supra; Gray v. Director, 2 Md.App. 412, 234 A.2d 783 (1967).

Here appellant's retrial was brought about at his own instance as a result of his petition filed under the Uniform Post Conviction Procedure Act some three years after his original conviction which resulted in the granting of a new trial for the identical same offenses to which he had previously plead guilty. In United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12...