Hurley v. State, No. 258

CourtCourt of Special Appeals of Maryland
Writing for the CourtBefore MURPHY; PER CURIAM
Citation251 A.2d 241,6 Md.App. 348
PartiesJohnny HURLEY v. STATE of Maryland.
Docket NumberNo. 258
Decision Date17 March 1969

John T. Bell, Rockville, with whom was Charles W. Bell, Rockville, on the brief, for appellant.

Henry J. Frankel, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Baltimore, William A. Linthicum, Jr., State's Atty., and Earl C. Hill, Jr., Asst. State's Atty. for Montgomery County, Rockville, on the brief, for appellee.



Appellant was found guilty by a jury in the Circuit Court for Montgomery County of robbery with a deadly weapon and was thereafter sentenced by the court to seven years under the jurisdiction of the Department of Correction. His principal contentions on this appeal are that the court committed prejudicial error when it refused to postpone his trial, and when it failed to grant his several motions for a mistrial.


On March 22, 1968 appellant's counsel filed a pretrial motion under Maryland Rule 735, claiming prejudice and requesting that he be tried separately from his jointly-indicted codefendant Kathy Fletcher. At a hearing on the motion, the severance was denied and the joint trial ordered to proceed on April 25. On that date, counsel for both defendants jointly participated in the selection of a jury and both liberally exercised their peremptory challenges until a jury was impaneled. Thereupon, prior to the jury being sworn and outside their presence, codefendant Fletcher's counsel moved for a trial severance on the ground that he had just learned that appellant would give testimony in direct conflict with his clien't version of the facts and that, if a severance were not granted, he would be ethically compelled to withdraw from the case. Without objection from appellant or the State, the severance was granted. Over appellant's objection, the State elected to prosecute him first.

Appellant contends that by reason of the last minute severance granted on his codefendant's motion, he was denied due process of law because he was burdened with a jury chosen, at least in part, by his codefendant's counsel. The record indicates, however, that the only objection interposed on behalf of the appellant was after the severance had been granted, and was in response to the State's choice to prosecute him first. Since the issue now sought to be raised was not preserved for appellate review by proper objection, we decline to review it. Maryland Rule 1085. It nevertheless appears clear that the grant of a severance achieved for appellant what he originally requested.


All witnesses were ordered sequestered at the trial. After counsel for both sides made opening statements to the jury, the prosecuting witness was called to testify and it was then learned that he had remained in the courtroom during the opening statements. Appellant thereupon moved for a mistrial, and contends on this appeal that the trial judge erred in denying his motion.

At the request of a party, the witnesses are to be excluded from the courtroom until called upon to testify. Maryland Rule 753. The essentil purpose of the Rule is to prevent one prospective witness from being taught by hearing another's testimony; its application avoids an artificial harmony of testimony that prevents the trier of fact from truly weighing all the testimony; it may also avoid the outright manufacture of testimony. See Wigmore, Evidence, Volume VI, Section 1838. A review of the trial court's inquiry, as disclosed in the record, indicates that the witness was illiterate and lacking in sophistication, and that his presence in the courtroom was unknown to all parties including the State's Attorney, who expressed his surprise at the witness's presence. Out of the presence of the jury, the prosecuting witness was called to testify concerning his failure to leave the courtroom. He stated that he heard the opening arguments but only part of the defense argument. He revealed that he did not leave the courtroom when the witnesses were excluded because 'I didn't know I was supposed to go.'

The failure to comply with Rule 753 does not constitute reversible error per se. It is within the sound discretion of the trial judge to determine whether to admit the testimony of the witness where there has been a violation of the exclusion order. Cunningham v. State, 247 Md. 404, 231 A.2d 501; Mayson v. State, 238 Md. 283, 208 A.2d 599; Bacheller v. State, 3 Md.App. 626, 240 A.2d 623; Britton v. State, 2 Md.App. 285, 234 A.2d 274. We find no abuse of that discretion under the facts of this case. We think it clear that the witness did not remain in the courtroom as the result of design-his own or that of anyone else.

Due to the witness's limited intelligence, the prejudicial impact, if any, would appear to be minimal. The grant of a mistrial would have afforded appellant little, if any, relief, since the witness's presence, and whatever knowledge he gained was a fait accompli, and could not be cured or erased by resorting to a new trial. 1


The following testimony was adduced at trial. George Washington Perdue, the prosecuting witness, testified that at about 7:00 p. m. on September 8, 1967, he and his son went to Roy's Tavern in Rockville; that later in the evening 'this lady come through asking me if I wanted to go up to an apartment with her,' and 'I told her yeah'; that he followed her to an apartment above the tavern and they entered one of the inner rooms where '(t)his guy was standing behind (the door) with a club and hit me'; that he looked his assailant in the face and saw that it was the appellant; and that he heard the woman, Kathy Fletcher, say to him, 'hand your billfold' and appellant then hit him again and knocked him unconscious. When he awoke he discovered that his wallet, which contained $900, was missing. The police were summoned and as he was waiting for their arrival, he saw appellant run up the stairway to the apartment and then quickly flee. The empty wallet was later recovered on the stairway leading to the apartment.

Grace Osborne, the bartender at Roy's Tavern, testified that Perdue left with the Fletcher woman between 11:30 p. m. and midnight (closing time), and that Perdue returned to the tavern five minutes later. Appellant had departed from the tavern a 'few minutes' before Perdue and Kathy Fletcher, and the 'other Hurley brothers' departed a 'few minutes' before appellant. Perdue's son testified that he left the tavern near closing time and thought that his father was with him. He next saw his father a short time later after he had been beaten and robbed, at which time he saw appellant running from the rear of the building in which Roy's Tavern is located.

Katherine Leccetti, a patron of the tavern that evening and a roomer in the apartment above it, testified that she left the tavern for her room upstairs at approximately closing time. There she saw appellant and Katherine Fletcher dragging Perdue's body through the hallway. Detective Sergeant Charles Percy testified that he responded to a call for assistance at the apartment at about 1:00 a. m.

Appellant testified that he arrived at Roy's Tavern at 9:00 p. m. and that he left between 9:30 p. m. and 10:00 p. m. He denied being in the apartment above the tavern that evening or having any knowledge of the robbery until he was arrested. He maintained that directly after he left Roy's Tavern he went next door to his uncle's restaurant, where he remained for about an hour, at which time he was taken home by Charles Hurley.

Of the two other witnesses produced by the defense, only the testimony of Charles Hurley sought to corroborate appellant's alibi. Charles Hurley, who claimed that he was appellant's cousin and not his brother, stated that he left Roy's Tavern at 10:30 p. m., went upstairs where he rented a room, and then went next...

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  • Lupfer v. State Of Md.., 1046, Sept. Term, 2008.
    • United States
    • Court of Special Appeals of Maryland
    • September 3, 2010
    ...also avoid the outright manufacture of testimony.’ ” Redditt v. State, 337 Md. 621, 629, 655 A.2d 390 (1995) (quoting Hurley v. State, 6 Md.App. 348, 351-52, 251 A.2d 241 (1969)). Accord Tharp, 362 Md. at 95, 763 A.2d 151. In this case, the court granted defense counsel's request to sequest......
  • Tharp v. State, 1
    • United States
    • Court of Appeals of Maryland
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    ...testimony."11 Redditt v. State, 337 Md. 621, 629, 655 A.2d 390, 394 (1995) (internal quotation marks omitted) (quoting Hurley v. State, 6 Md.App. 348, 351-52, 251 A.2d 241, 244, cert. denied, 255 Md. 742 (1969)); see also Johnson v. State, 283 Md. 196, 200, 388 A.2d 926, 928 (1978) ("The pu......
  • Attorney Grievance Comm'n of Md. v. McDonald, Misc. Docket AG No. 38
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    • Court of Appeals of Maryland
    • February 21, 2014
    ...which Md. Rule 5–615 is intended to prevent. Redditt v. State, 337 Md. 621, 629, 655 A.2d 390, 394 (1995) (quoting Hurley v. State, 6 Md.App. 348, 351–52, 251 A.2d 241, 244 (1969)); see also Erman v. State, 49 Md.App. 605, 624, 434 A.2d 1030, 1042 (1981) (holding that a trial court did not ......
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    ...(1968), cert. den., 394 U.S. 948, 89 S.Ct. 1284, 22 L.Ed.2d 482 (1969); Smith v. State, 169 Md. 474, 182 A. 287 (1936); Hurley v. State, 6 Md.App. 348, 355, 251 A.2d 241 (1969); Baldwin v. State, 5 Md.App. 22, 30, 245 A.2d 98 (1968). Cf. Contee v. State, 223 Md. 575, 583-584, 584, 165 A.2d ......
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