McCargo v. State

• Decision Date: 15 April 1968
• Docket Number: No. 121,121
• Citation: 241 A.2d 161,3 Md.App. 646
• Parties: George Leonard McCARGO alias James McClain v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 646

3 Md.App. 646

241 A.2d 161

George Leonard McCARGO alias James McClain v. STATE of Maryland.

No. 121.

Court of Special Appeals of Maryland.

April 15, 1968.

Roland Walker, Baltimore, with whom was Millard S. Rubenstein, Baltimore, on brief, for appellant.

William B. Whiteford, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and James A. Wise, State's Atty., for Caroline County, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

PER CURIAM.

This is an appeal from a general verdict of guilty by the court in the Circuit Court for Caroline County under an indictment charging storehouse breaking with intent to commit a felony (1st count) and grand larceny (2nd count) and consecutive sentences of imprisonment for a term of 5 years on the first count and 10 years on the second count.

The record indicates that the appellant was arrested on July 27, 1965 on a charge of larceny of a pistol. While awaiting trial he escaped from the county jail on August 30, 1965, was apprehended about 36 hours later, was tried and convicted for the escape in October 1965 and sentenced to imprisonment for a term of 18 months. The charge of larceny of a pistol was dismissed. On November 1, 1965, during his incarceration on the escape conviction, he was indicted for the offenses which are the subject of this appeal. He was brought before the Circuit Court for Caroline County on November 8, 1965, informed of the nature of the charges against him, of the maximum sentence which could be imposed upon conviction and of his right to counsel. On the same day counsel was appointed to represent him. He served about 13 months on the escape sentence but was still confined on a detainer. He was admitted to bail on the offenses of storehouse breaking and grand larceny then pending on October 13, 1966 and tried and convicted on those offenses on January 30, 1967.

He presents three questions on appeal:

I. Was he denied a speedy trial?

II. Was he afforded effective assistance of counsel?

III. Was the evidence sufficient to sustain the convictions?

I

On November 7, 1966 the appearance of counsel appointed to represent the appellant was stricken. He retained private counsel whose appearance was entered on that date. On January 11, 1967 a motion to dismiss the indictment was filed on the ground that a speedy trial had been denied him. The motion was heard on January 24 and 25, 1967 and denied. At the hearing on the motion to dismiss the appellant testified that he had importuned his court appointed counsel to seek a trial. Counsel testified that, in his opinion, trial while the appellant was incarcerated on the escape conviction would be detrimental and that he would not press for trial until he thought it would be to the appellant's advantage for trial to be had. It 'was purely a matter of legal tactics' and counsel's 'own best judgment or decision,' in the appellant's best interest. When the appellant was released from the sentence for escape, counsel was in the hospital, which fact was known to the appellant. When the appellant was released on bond, counsel had no further communication from him. The appellant claimed he was prejudiced because his wife died on July 4, 1966 and she would have testified that he was away from home from 2 July to 7 July and had telephoned her from Baltimore. The lower court found no actual prejudice. 'Obviously all his wife could have testified to under any circumstances was that he was not home from the 2nd to the 7th of July (the crime was alleged to have been committed on 6 July), and where he was she had no personal knowledge except he called her on the telephone and said he was talking from Baltimore City * * * She could not have possibly said whether he was in Caroline County on the 6th of July or whether he wasn't. She wasn't with him and didn't know where he was. We don't believe she could have been used to any effect as an alibi witness'. The lower court further found that no proper demand had been made for trial until January 11, 1967 when the motion to dismiss the indictment was filed and that the delay occasioned after retained counsel entered his appearance on November 7, 1966 was due 'to pleadings filed by the accused through his counsel'. ¹ The lower court found that the right to a speedy trial had not been denied. We agree and find no error in the denial of the motion to dismiss the indictments. In Fabian v. State, 3 Md.App. 270, 239 A.2d 100 filed February 29, 1968 we noted that a defendant may waive the right to a speedy trial by failing to demand it, or, having demanded it, he may waive it by his conduct thereafter. We held that when an accused does not make a demand for a speedy trial, he must show that he has suffered actual prejudice caused by the undue delaying tactics of the State. Absent such a showing, the right to a speedy trial has not been denied him. The appellant had waived any right he may have had to a speedy trial until January 11, 1967 and showed no actual prejudice by the delay. He went on trial 19 days after his demand. This delay of 19 days was in no wise arbitrary, capricious, oppressive or unreasonable and did not reach constitutional proportions.

II

The question whether the appellant was afforded effective assistance of counsel is directed toward his court appointed counsel. The basis of the contention that he was not afforded effective assistance is that such counsel did not press for a speedy trial. Under the circumstances shown by the record before us we cannot conclude that the court appointed counsel was inadequate by reason of his tactics in not pressing for trial. He was an attorney with extensive experience and in his considered opinion, a trial while the appellant was incarcerated for another offense would have been against the best interest of his client. In considering the matter we are not unmindful of our holding that the appellant showed no prejudice as a result of the delay. See Charles v. State, 1 Md.App. 222, 228 A.2d 620.

III

The corpus delicti of both the storehouse breaking and grand larceny was proved. An owner of the appliance and furniture store in Federalsburg, Md., designated in the indictment, testified that he was the last to leave the above store about 8:00 P.M. on July 6, 1965. He 'locked it up' and the inventory at that time was intact. When he opened the store about 8:00 A.M. the next morning he found that four portable television sets, two wrist watches, five radios, two portable phonographs and petty cash of $2.57 had been taken. The total value of the missing articles was in excess of $700. He observed that one of the double doors at the rear of the store had been 'removed completely' and a glass pane broken. The screws had been pried loose from the door molding and the hinges removed. He called the police. A corporal of the Maryland State Police arrived on the scene about 8:30 A.M. He testified that the point of entry was the rear door, giving access to the entire store. The door had been forced with 'sort of a pry...