Jones v. State

• Decision Date: 03 December 1968
• Docket Number: No. 70,70
• Citation: 5 Md.App. 489,248 A.2d 166
• Parties: Johnnie JONES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 489

5 Md.App. 489

248 A.2d 166

Johnnie JONES v. STATE of Maryland.

No. 70.

Court of Special Appeals of Maryland.

Dec. 3, 1968.

Joseph G. Koutz, Baltimore, for appellant.

Bernard L. Silbert, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Joseph R. Raymond, 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.

MURPHY, Chief Judge.

Appellant was convicted by the court sitting without a jury of robbery and sentenced to four years under the jurisdiction of the Department of Correction. He contends on this appeal that the lower court erred in failing to grant his motion to suppress evidence, said motion being based on the ground that he was illegally arrested, illegally searched, illegally questioned, and illegally confronted with evidence unlawfully seized by the police.

Appellant having expressly agreed that his pretrial motion to suppress evidence could be considered and determined during the course of the trial, the State introduced evidence to show that at approximately 12:20 p. m. on September 16, 1967, Roland Stickley, a Tennessee resident sojourning in Maryland, drove in his 1966 Chevrolet to a tavern in Baltimore City where he met a Negro man, whom he later identified as the appellant. Stickley testified that he agreed at appellant's request to drive him to a specified address; that they left the tavern together, got into Stickley's car, at which time appellant hit him over the head with a bottle, struck him with a stick, and thereafter (after breaking Stickley's ankle and leaving him on the ground) drove off in his car.

Stickley identified appellant as the robber-assailant at the trial over appellant's objection that such identification evidence was inadmissible on the ground that appellant had been illegally arrested. Stickley was then shown certain photographs by the State's Attorney which he identified as the car which had been stolen from him. The photographs were received in evidence over appellant's objection 'based on the motion to suppress the evidence.'

Stickley testified that shortly after commission of the crime, police arrived on the scene and, while he was awaiting an ambulance, he told the police 'what happened,' described his assailant as a light colored Negro around 150 lbs., 5 9 in height, lean and rawboned, and told them that he had heard him referred to as 'Jones' in the tavern. Stickley also described his car to the police and gave them its license number. Appellant objected to Stickley's testimony concerning what he told the police, but the court admitted it, apparently on the ground that since the legality of the arrest had been questioned by the appellant in his motion to suppress evidence, the information given by Stickley to the police would be admissible on the question of the existence of probable cause for appellant's arrest.

Stickley further testified, again over appellant's objection, that he viewed eight to ten photographs in Washington, D. C., and picked out appellant as his assailant; that he also viewed ten to twelve photographs in Baltimore and again picked out appellant as his assailant; and that after these identifications he attended a preliminary hearing in Washington, D. C., having been previously told by the police that they had apprehended one 'Johnnie Jones.' Stickley testified that he saw the appellant as they brought him into a crowded court room. The State then rested its case, at the conclusion of which appellant urged the court to rule favorably on his motion to suppress evidence, including suppressing the testimony of Stickley, on the basis that there was no showing that appellant had been legally arrested. The State argued that it was unnecessary to prove the legality of the arrest since no tangible evidence had been seized from the appellant at the time of his arrest, nor was any evidence introduced at the trial which resulted from the allegedly illegal arrest. The lower court agreed with the State and denied appellant's motion to suppress evidence.

Appellant then testified in his own behalf. He denied ever having seen Stickley or being with him in the tavern on the night of the crime. On cross-examination he admitted that he was in Stickley's car when arrested in Washington, D. C. but stated that he was in the car at the invitation of two friends, Bootsie Green and another man known to him only as Big Holly (neither of whose addresses he knew). He testified that at the time of his arrest he was reading in Stickley's car waiting for his two friends to return, the keys to the vehicle having been left by them in the ignition.

Appellant then called a police officer to testify on his behalf. The officer's testimony indicated discrepancies between the description of the robber given by the victim to the police, and his trial testimony relating thereto, as well as some differences involving the details of the crime's commission.

Maryland Rule 729 a provides, inter alia, for the filing of motions to suppress evidence 'whenever property is claimed in a court to have been obtained by an unlawful search or seizure,' such motions ordinarily being filed on the ground, as set out in subsection b of the Rule, that such unlawfully obtained property 'may be used as evidence at the trial.' Appellant's motion to suppress did not specify any particular property or tangible items alleged to have been unlawfully obtained from him at the time of his arrest.

While we agree with appellant that the State failed to prove that he was lawfully arrested, we do not agree under the particular facts of this case that it was essential for the State to prove the legality of the arrest simply because the appellant had pending before the court a motion to suppress unspecified evidence on the ground that the arrest was illegal. It is well settled that an illegal arrest does not affect the jurisdiction of the court, is not ground for quashing the...