Metallo v. State

• Decision Date: 24 July 1970
• Docket Number: No. 538,538
• Citation: 267 A.2d 804,10 Md.App. 76
• Parties: John Richard METALLO v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 76

10 Md.App. 76

267 A.2d 804

John Richard METALLO v. STATE of Maryland.

No. 538.

Court of Special Appeals of Maryland.

July 24, 1970.

Certiorari Denied Nov. 10, 1970.

John Edward Shinners, Towson, for appellant.

John J. Garrity, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., State's Atty., and Clewell Howell, Jr., Asst. State's Atty. for Baltimore County, on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

It is firmly established, and we have so stated in a number of opinions, that a positive identification by one eyewitness to a crime, whether the victim or some other person, is sufficient to prove criminal agency. Bailey v State, 6 Md.App. 496, 508, 252 A.2d 85. The weight to be given such identification evidence and the credibility of the witness are matters for the trier of fact. Melia and Shelhorse v. State, 5 Md.App. 354, 247 A.2d 554. ¹ So when the corpus delicti of the crime charged is proved and testimony by the victim or an eyewitness that the accused perpetrated the crime is admitted, the evidence is sufficient to support a conviction. Here the corpus delicti of each of the offenses of robbery with a deadly weapon, grand larceny, and the wearing of a deadly weapon concealed about the person, were proved, being the first, sixth and twelfth counts in an indictment under which John Richard Metallo was tried by the court in the Circuit Court Baltimore County. A positive judicial identification of Metallo by the victim, Inez Drew Gittings, and the admission of evidence that she identified him as the perpetrator of the offenses at a lineup and a preliminary hearing established his criminal agency. In addition he was positively identified at trial by the victim's employer, Robert Sherman, as one of two persons who were in the rental office where the robbery occurred immediately before the crime was committed. Sherman further testified that he had also identified appellant at a lineup. That this evidence would have been sufficient to support the conviction is clear. However, the State proceeded to adduce evidence that of the total amount stolen in the robbery, $2791.19, approximately one-half was found on each of the person of Metallo and his companion, Michael John Joseph Rife, when they were arrested shortly after the commission of the crime. The trial court admitted the evidence over objection. The money was obtained by the police by a search and seizure of Matello and Rife made incident to their warrantless arrests. The search of them and the seizure of the money would be reasonable only if the arrests were legal. Metallo, the appellant here, claims his arrest was illegal because the arresting officer did not have probable cause to believe that he had committed a felony, see Code, Art. 27, § 594B(c), and because the arresting officer, as a member of the Baltimore County Police Department, had no jurisdiction to make the arrest where it was made, in Baltimore City. That Metallo was in exclusive possession of property recently stolen in a robbery would raise an inference that he was the robber, absent a reasonable explanation. Hernandez v. State, 7 Md.App. 355, 367-368, 225 A.2d 449. But on the evidence here the inference arising from possession of recently stolen property was not necessary to provide evidence of the criminal agency of appellant. Thus, even if the testimony as to the money being found in appellant's possession was admitted in error ², we feel that the error was harmless beyond a reasonable doubt and does not require reversal of the judgment. See Chambers v. Maroney, 399 U.S. 419, 90 S.Ct. 1975, 26 L.Ed.2d 419; Middleton v. State, Md.App., 267 A.2d 759, 1969, filed 16 July 1970; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Therefore we have no need to reach the questions presented which go to the legality of the arrest. ³

Appellant contends that he was denied due process of law because upon his arrest in Baltimore City by a Baltimore County Officer he was not taken before a judge of the criminal division of the Municipal Court of Baltimore City as required by Code, Art. 26, § 115. This point was not tried and decided below and is not properly before us. Maryland Rule 1085. We observe that although § 115 imposes the duty on the arresting officer to take any person arrested in Baltimore City before a judge of the criminal division of the Municipal Court, who acts as a committing magistrate when the offense charged is beyond the jurisdiction of the court, it provides no sanctions for the failure to comply with its provisions. We do not think that such failure in itself would render an arrest illegal, vitiate a trial, or require reversal of a judgment.

Appellant asks whether the lineup was illegal. If it was, the evidence adduced by the State as to identifications made thereat, offered as corroborative of the in-court identifications, was admitted in error if properly challenged below. Assuming that it was properly challenged, but see Albert Darrell Jones v. State, 9 Md.App. 455, 265 A.2d 271, 1969, filed 13 May 1970, we do not find that the lineup was illegal. Appellant urges that it was illegal because his arrest was illegal and because it was 'unfair' in its makeup. As to the first reason we held in Tender v. State, 2 Md.App. 692, 696-697, 237 A.2d 65 that an illegal arrest did not render a subsequent lineup illegal. See Hartley v....