McChan v. State

• Decision Date: 15 March 1965
• Docket Number: No. 199,199
• Citation: 207 A.2d 632,238 Md. 149
• Parties: George McCHAN, Major Kenneth Jones, Willie Fred Bethea, Robert Paige Griffin and Charles Douglas Shelly, v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 149

238 Md. 149

207 A.2d 632

George McCHAN, Major Kenneth Jones, Willie Fred Bethea, Robert Paige Griffin and Charles Douglas Shelly, v. STATE of Maryland.

No. 199.

Court of Appeals of Maryland.

March 15, 1965.

George L. Russell, Jr., Baltimore (Milton B. Allen, Baltimore, on the brief), for appellant, George McChan.

Alvin Solomon, Baltimore, for appellant, Major Kenneth Jones.

Arthur W. Kupfer, baltimore, for appellant, Willie Fred Bethea.

Abraham L. Adler, Baltimore, for appellant, Robert Paige Griffin.

Joel Margolis, Baltimore, for appellant, Charles Douglas Shelly.

Julius A. Romano, Asst. Atty. Gen., Baltimore (Thomas B. Finan, Atty. Gen., and Charles E. Moylan, Jr., State's Atty., for Baltimore City, Baltimore, on the the brief), for appellee.

Before PRESCOTT, C. J., and HAMMOND, HORNEY, MARBURY and BARNES, JJ.

HORNEY, Judge.

There prosecutions for armed robbery and other offenses incident thereto arose out of a series of five holdups of liquor dispensing establishments in Baltimore City committed within less than a fortnight at the end of 1963 and the beginning of 1964. All five of the appellants--George M. McChan, Major K. Jones, Robert P. Griffin, Willie F. Bethea and Charles D. Shelly--were convicted of one or more of the crimes charged in eleven indictments, and all have appealed.

All of the holdups followed a pattern in that the participants were colored men wearing black scarves as a mask with one of them (though not always the same one) carrying a single-barrelled shotgun. On December 27, 1963, Howard's Liquor Store was robbed by two men. On January 1, 1964, Eddie's Cafe was robbed by three men. On January 2, Lou's Liquor Store was robbed by three men. Later that same night the Ensor Lounge was robbed by three men. And on January 9 an attempt was made by two men to rob Howard's Liquor Store again. On this occasion, an employee of the store shot one of the robbers and the robber with the shotgun fired in the direction of one of the employees. Although the wounded man escaped, he was apprehended a short distance from the scene of the attempted robbery.

As a result of the first holdup of Howard's Liquor Store, McChan, Jones and Griffin were charged (under indictment numbered 234) with armed robbery. Jones was found guilty. McChan and Griffin were found not guilty. McChan was also charged (under indictment numbered 236) with carrying a deadly weapon, but was found not guilty. As a result of the holdup of Eddie's Cafe, McChan, Jones and Griffin were charged (under indictment numbered 233) with armed robbery and McChan was separately charged (under indictment numbered 237) with carrying a deadly weapon. All were found guilty of armed robbery. On the theory that there had been a merger of offenses, McChan was found not guilty under the separate indictment. ¹ As a result of the holdup of Lou's Liquor Store, all of the appellants were charged (under indictment numbered 230) with armed robbery and were found guilty. As before, the separate deadly weapon charge against McChan (under indictment numbered 235) was held to have merged with the armed robbery charge. As a result of the holdup of the Ensor Lounge, all of the appellants were charged (under indictment numbered 228) with armed robbery and were found guilty and McChan was found not guilty (under the separate indictment numbered 238) of the deadly weapon charge. As a result of the attempt to rob Howard's Liquor Store a second time, Jones, Griffin and Bethea were charged (under indictment numbered 229) with attempted armed robbery. Griffin was found not guilty. Jones and Bethea were found guilty. Bethea was charged (under indictment numbered 231) with an assault with intent to murder and (under indictment numbered 232) with carrying a deadly weapon, and was found not guilty on both charges.

While Officer Arnold was patrolling his post in the vicinity of the attempted holdup of Howard's Liquor Store he heard what sounded like a shotgun blast. As he continued walking in the direction from which the sound came, the officer saw a man (later identified as Jones) running towards him. When the man saw the officer, he slowed to a walk and crossed to the other side of the street. The officer also crossed the street, spoke to the man, and noticing that a wound on his head was bleeding, suggested that he retrace his steps. On arriving at the scene of the holdup, the officer learned that there had been an attempted robbery, and, seeing blood in the area of his abdomen, asked the man if he had been shot. He indicated that he had been and was taken by the officer in a police car to a hospital where he was treated for the abdominal wound. He remained there for a week. During a part of that time his condition was serious.

At the scene, Lieutenant Goodrich and Sergeant Adams learned that both participants had their faces covered with black bandannas or scarves and that the one who was not immediately apprehended weighed over 150 pounds, was 25 to 30 years old, was about 5 1/2 feet tall and was wearing a long dark car coat. Later, the investigating officers went to the hospital to question the one who had been shot, but he refused to give them his name or address or any other information. Thereafter, having returned to the police station, the police continued the interrogation of those who had witnessed the attempted robbery, including McChan, who, it appeared, was a customer at the time of the holdup.

During the course of the continuing investigation, the police received an anonymous telephone call implicating Bethea as the participant who got away as well as information as to where he lived. The police proceeded forthwith to investigate the tip. When they arrived at the address given, one officer went to the rear of the house. When one of the other officers knocked on the front door, a man, fitting the general description the police had previously received of the other participant, appeared at a second story window with a black scarf on his head. On seeing the police, he came downstairs without the scarf and opened the door. It was Bethea. He was taken to the police station for questioning. On arriving there and before entering, Bethea informed the police that the robbery weapon had been hidden in the apartment of McChan (a relative of his) and went with the police to the apartment. McChan, who had been previously questioned and released as a witness, was at home, and the police, claiming he granted permission, entered the apartment and searched it. They found the wooden part of the shotgun (hereinafter referred to as 'the wooden part') concealed behind a cabinet in the kitchen and McChan was arrested forthwith. When the police inquired of him as to the whereabouts of the other parts of the shotgun, he told them they could have been taken by one of several recent visitors, including Griffin, and directed the police to a nearby garage where they found Griffin asleep in an automobile. He was also arrested without a warrant. After their arrest, Griffin and Bethea informed the police that Shelly had participated in one or more of the holdups either as a lookout or as a driver of the automobile they used as a conveyance. Shelly, as were all other participants, was also arrested without a warrant before the end of the day (January 9, 1964) on which the last crime--the second holdup of Howard's Liquor Store--was committed.

All of the appellants, except Jones, made one or more extrajudicial statements to the police either on the day of the arrests or sometime during the two following days. The Jones statement was made after he was discharged from the hospital a week later. Besides the oral statement to the police on January 9 concerning the whereabouts of the shotgun used in the holdups, Bethea made three other statements. In his first written statement, made on the same day as the oral statement, he admitted that he was the lookout man at the Ensor Lounge holdup committed by McChan, Griffin and Jones and received a part of the money taken. In the second written statement made on January 10, Bethea, besides restating his participation in the Ensor Lounge robbery, admitted that he was also the lookout at the holdup of Lou's Liquor Store carried out by McChan, Griffin and Jones. Bethea made another statement on January 11 but it was not admitted in evidence. Griffin made two written statements on January 9. In the first one, he admitted that he participated with McChan and Jones in the holdup of Eddie's Cafe. In the second statement, he admitted that he also participated in the holdups at Lou's Liquor Store and the Ensor Lounge with McChan, Jones, Bethea and Shelly. A third statement made by Griffin on January 11 was not admitted in evidence. Shelly admitted in a statement made on January 10 that he had participated (as the driver of the automobile) in the holdups of Lou's Liquor Store and the Ensor Lounge. In the statement he made on January 11, McChan admitted participating in the holdups of Eddie's Cafe, the Ensor Lounge and Lou's Liquor Store. He also admitted having possession of the shotgun but claimed it belonged to Jones. The complete statement made by Jones on January 16 was not admitted in evidence but (by agreement of the parties) three of the five parts of the statement were read into the record. Thereon, Jones admitted his participation in the holdups at Eddie's Cafe, the Ensor Lounge and Lou's Liquor Store.

After the arrest of the appellants, and before some of the statements of the arrestees had been taken, the police entered the rear yard of the premises in which McChan had an apartment, and, without a warrant, searched for and seized the two missing parts of the shotgun, which, when assembled with the wooden part found in the apartment, made a complete shotgun. No part of the shotgun had been recovered when Bethea made the oral statement to the police. Nor was any part of the weapon exhibited to Jones while he was making his...